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THE  LIBRARY 

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Philadelphia,  9  N.  Fourth  St. 
May  1830.. 


TO  THE 


mtmtttn  of  ttie  Batt  of  tije  m.  Statesi. 


Gentlemen: 

Having  made  an  arrangement  with  Mr  Peters,  the  Re- 
porter of  the  Decisions  of  the  Supreme  Court  of  the  United 
States,  for  the  publication  of  the  future  volumes  of  his  Reports 
of  Cases  decided  in  that  Court;  being  in  possession  of  a  num- 
ber of  copies  of  the  First  and  Second  Volumes  of  those  Reports; 
and  having  already  become  the  Publisher  of  his  "  Condensed 
Reports  of  Cases  in  the  Supreme  Court,  containing  the 
whole  series  of  decisions  in  that  court  from  its  organization 
to  the  commencement  of  Mr  Peters'' s  first  volume  in  1827," 
I  am  prepared  to  supply  the  profession  and  booksellers  with  any 
number  of  copies  of  the  published  works,  and  those  which  will 
follow.  I  therefore  take  the  liberty  to  address  this  letter  to 
you,  and  I  respectfully  submit  to  your  attention  the  following 
statements  and  considerations. 

By  the  ''  Condensed  Reports,''  the  first  volume  of  which 
has  been  published,  and  the  second  volume  of  which  is  in  the 
press,  the  Members  of  the  Bar  of  the  United  States  will  have 
an  opportunity  to  become  possessed  of  the  whole  of  the  deci- 
sions of  the  Supreme  Court  from  1791  to  1827,  at  little  more 
than  one  fourth  of  the  cost  of  the  original  works  in  which  those 
cases  were  originally  published.  The  whole  cost  of  the  Con- 
densed Reports,  to  be  contained  in  six  volumes,  will  not  exceed 
thirty-six  dollars  bound  ;  and  they  will  comprehend  the  United 
States  Cases  to  be  found  in  the  four  volumes  of  Mr  Dallas,  the 
nine  volumes  of  Mr  Cranch,  and  the  twelve  volumes  of  Mr 
Wheaton.  The  first  and  second  volumes  of  this  publication 
will  include  the  cases  in  the  four  volumes  of  Mr  Dallas,  and  the 
nine  of  Mr  Cranch. 

But  this  description  of  the  work  does  not  fully  convey  a 
statement  of  its  contents.     The  notes  subjoined  to  the  cases 


will  contain,  arranged  under  their  appropriate  heads,  all  the 
principles  ruled  and  decided  in  the  Circuit  Courts  of  the  United 
States,  as  the  same  have  been  reported  by  Mr  Gallison,  by  Mr 
Mason,  by  Mr  Paine,  by  Mr  Peters,  by  Mr  Justice  Wash- 
ington, Mr  Bee  and  Mr  Day,  and  in  the  "  Admiralty  Deci- 
sions." Well  founded  expectations  are  also  entertained,  that 
abstracts  from  the  manuscript  decisions  of  Mr  Chief  Justice 
Marshall  in  the  circuit  in  which  he  presides,  will  be  made  to 
contribute  to  the  value  of  this  work. 

The  <'  Condensed  Reports"  and  the  Reports  of  Mr  Peters 
commencing  in  1827,  it  is  submitted,  will  in  themselves  fur- 
nish almost  a  Complete  Law  Library.  There  is  scarcely  a 
part  of  the  law  of  the  United  States,  or  of  the  individual  States, 
which  has  not  been  examined  and  settled  in  the  Courts  of  the 
United  States. 

The  jurisdiction  of  the  Circuit  Courts  of  the  United  States, 
extending  to  cases  between  citizens  of  different  States,  and  be- 
tween foreigners  and  citizens  of  these  States,  as  well  on  subjects 
vvithin  the  laws  of  the  States,  as  those  which  are  regulated  by 
general  law, — The  exclusive  Admiralty  Jurisdiction  of  the 
Courts  of  the  United  States,  as  well  as  the  special  Jurisdiction 
of  those  Courts  in  cases  under  acts  of  Congress, — The  home 
jurisdiction  of  those  courts  in  cases  arising  in  the  District  of 
Columbia — have,  during  the  past  forty  years,  brought  into  ex- 
amination and  decision  a  variety  of  cases  of  the  highest  and 
of  the  most  general  importance,  the  extent  and  number  of 
which  can  only  be  known  by  an  examination  of  the  volumes 
in  which  they  are  reported.  Nor  is  it  only  in  cases  of  great 
and  general  importance  that  the  jurisdiction  of  those  courts 
has  been  applied.  The  Laws  of  Evidence — the  Land  Laws  of 
many  of  the  States  of  the  Union — the  Law  of  Contracts — the 
Law  of  Insurance — the  Law  of  Chancery — the  Rules  of  Prac- 
tice— all  these  in  all  their  various  forms  have  been  under  con- 
sideration in  the  courts  of  the  United  States. 

Are  not  the  decisions  of  the  courts  of  the  United  States  of 
the  highest  authority?  In  the  courts  of  the  United  States 
they  are  certainly  so ;  and  it  is  claimed  that  their  influence,  if 
not  their  authority,  is  equal  in  the  courts  of  the  individual 
States.  What  Judge  of  a  State  Court  would  willingly  attempt 
the  establishment  of  a  rule  of  property  or  of  evidence  differ- 
ing from  or  opposed  to  that  which  had  been  settled  by  solemn 
adjudication  of  the  Supreme  Court  of  the  United  States  ;  a  tri- 
bunal composed  of  men  of  the  highest  judicial  eminence  in  the 
nation  ? 

It  is  admitted  that  a  State  Court  is  not  bound  to  submit 
to  the  decision  of  that  court  in  any  case  not  exclusively  within 
its  jurisdiction;  but  it  is  again  asked,  will  a  Judge  of  a  State 
Court  pass  by  with  disregard  a  decision  of  that  court  in  a 


case  which  has  been  regularly  and  properly  before  it  ?  While 
he  may  be  doing  this  in  a  case  before  him  between  citizens 
of  his  own  State;  the  Circuit  Court  of  the  United  States,  in 
the  legitimate  application  of  the  law  of  the  Supreme  Court 
of  the  United  States,  in  a  similar  case  depending  in  the  Cir- 
cuit Court  in  the  same  state,  between  one  of  the  very  parties 
to  the  case  in  the  State  Court,  and'  a  citizen  of  another  State 
or  a  foreigner,  may  be  enforcing  the  law  differently.  The 
high  character  of  State  tribunals,  the  possibility  of  the  state 
of  things  described,  have  always  given,  and  will  continue  to 
give  the  decisions  of  the  Courts  of  the  United  States  the 
grave  and  serious  consideration,  and  respect  of  the  Judges 
of  the  Courts  of  all  the  States  of  the  Union. 

Nor  are  the  decisions  of  the  Judges  of  the  Supreme  Court 
of  the  United  States;  abstracts  of  all  which,  as  has  been 
said,  will  be  given  in  notes  to  the  Condensed  Reports  ;  to  be 
considered  as  cases  adjudged  in  courts  of  inferior  jurisdiction 
only.  The  right  of  appeal  and  writ  of  error  to  the  Supreme 
Court  in  those  cases — the  fact  that  those  courts  are  held 
by  the  justices  of  the  higher  and  highest  tribunal,  who,  in 
their  annual  session  in  the  Supreme  Court,  have  opportunities, 
which  are  certainly  employed,  of  investigation,  and  of  thus 
ascertaining  and  fixing  principles  of  law — give  to  the  Circuit 
Court  decisions  very  high,  if  not  conclusive  authority. 

In  every  State  in  the  Union,  Circuit  or  District  Courts  of 
the  United  States  are  held  twice  a  year  and  oftener,  and  thus  to 
every  Member  of  the  Bar,  practising,  or  who  may  practise  in 
those  courts,  the  Reports  which  are  the  subject  of  this  Letter 
are  of  essential  necessity.  If,  in  the  State  Courts,  they  are 
respected  as  of  high  influence,  and  entitled  to  receive  such  con- 
sideration and  respect ;  in  the  Federal  Courts  they  are  exclu- 
sively the  law  of  every  case  which  comes  before  these  courts. 

Containing,  as  they  do,  so  large  a  body  of  the  supreme  law 
of  the  land,  applicable  to  all  the  business  and  to  every  condi- 
tion of  persons  and  things,  it  is  respectfully  urged  for  your 
attention,  that  every  lawyer  ought,  with  a  just  regard  to  the 
safety  and  interest  of  his  clients,  to  possess  the  "  Condensed 
Reports,"  and  Mr  Peters's  "  Reports  of  Cases  decided  in  the 
Supreme  Court  of  the  United  States,  commencing  at  January 
t^m  1828." 

Very  respectfully, 

.  JOHN  GRIGG. 


CHANCERV   RSPORTS. 

JOHN  GRIGG,  No.  9.  North  Fourth  street,  has  also  in  press 
the  Decisions  of  the  English  Chancery  Courts^  upon  the  plan 
which  has  been  adopted  and  syccessfully  executed  with  the  "  En- 
ghsh  Common  Law  Reports."  The  work  will  comprehend,  in  a 
condensed  form,  all  the  Reports  which  have  not  been  republished 
in  the  United  States ;  and  it  will  be  continued,  so  as  to  present  to 
the  profession  annually,  the  Chancery  Reports  as  they  shall  here- 
after appear  in  Great  Britain. 

The  work  will  also  contain  references  to  the  Decisions  of  the 
Chancery  Courts  of  the  United  States,  and  of  the  several  states. 


J.  G,  amongst  a  large  assortment  of  Law  Books^  has  for  sale 

Atkyns's  Reports.     By  Saunders,  3  vols. 

Blackstone's  Commentaries.  By  Christian,  Archbold,  and  Chitty, 
new  edition. 

Caines's  New  York  Term  Reports,  3  vols. 

CHITTY  ON  CONTRACTS,  1  vol.  8vo,  new  edition. 

Chitty's  Pleadings,  3  vols,  new  edition. 

Clancy  on  the  Rights  of  Married  Women. 

Comyn  on  Contracts,  new  edition.     Clerk's  Assistant. 

Cruise  on  Real  Property,  new  edition,  4  vols. 

Coke's  Reports,  7  vols.     Coke's  Reports,  abridged. 

Coxe's  New  Digest  of  United  States  Reports. 

Durnford's  and  East's  Reports,  4  vols,  new  edition. 

FONBLANQUE'S  Celebrated  TREATISE  ON  EQUITY.  A 
new  edition,  with  considerable  additions  from  the  last  London 
edition,  by  a  distinguished  Member  of  the  Philadelphia  Bar,  in 
1  vol.  royal  8vo. 

Jones  on  Bailments,  a  new  edition.     In  1  vol.  8vo. 

Laws  of  United  States,  3  vols.  Story's  edition. 

Long  on  Sales  of  Personal  Property. 

Maddock's  Chancery,  2  vols. 

Merivale's  Chancery  Reports,  3  vols.     Montagu  on  Lien. 

Peake's  Evidence,  by  Norris. 

Roberts  on  Fraudulent  Conveyances. 

SAUNDERS'S  REPORTS,  in  3  vols,  Bvo.  The  4th  American, 
from  the  5th  considerably  enlarged  London  edition.  ^ 

STARKIE  ON  EVIDENCE,  3  vols,  royal  8vo,  new  ediiion. 

Starkie's  CriminalPleading.     Starkie  on  Slander. 

Sugden  on  Law  of  Vendore,  new  edition. 

Swanston's  Chancery  Reports,  3  vols. 

TOLLER'S  LAW  OF  EXECUTORS  AND  ADMINISTRA- 
TORS. With  Notes  and  References  to  American  Authori- 
ties, by  E.  D.  Ingraham,  Esq.  new  edition. 

Vernon's  Chancery  Reports,  a  new  edition,  by  Raithby,  in  2  vols. 

Vattel's  Law  of  Nations,  new  edition. 


AN 

ESSAY 


LAW  OF  BAILMENTS 


SIR  WILLIAM  JONES  Knt. 


'(2:f)i«;D  loitDon  JDitfon, 

WITH 

NOTES  AND  REFERENCES 

ON  THE  SUBJECT  OF 
CARRIERS,  INNKEEPERS,  WAREHOUSEMEN,    AND    OTHER   BAILEES. 

Bv  WILLIAM  NICHOLS,  Esq. 

Of  Lincoln's  Inn,  Barrister  at  Law. 

WITH  ADDITIONAL  NOTES  AND  REFERENCES  TO 
AMERICAN  DECISIONS, 

BY 

WILLIAM  HALSTED,  Jun.  Esq. 


JVEW-YORK: 

PUBLISHED  BY  O.  HALSTED, 

and 

JOHN  GRIGG,  PHILADELPHIA. 


1§28. 


T 

T7283  b 


Southern  Districts  of  New-York,  ss. 

BE  IT  REVIEVTBCRED,  That  on  the  51st  day  of  December,  A. 
D.  1827.  in  the  52nd  year  of  the  Indepeodance  of  the  United  States  of 
America,  O.  Halsted  of  the  said  Disirict,  hath  deposited  in  this  oflSce 
the  title  of  a  Book  th  •  right  whereof  he  claims  as  Proprietor  in  the 
words  following-,  to  wit: 

An  Essay  on  the  Law  of  Bailments,  by  Sir  William  Jones,  Knt. 
Third  London  Edition,  with  notes  and  references  on  the  snbject  of 
Carriers,  Innkeepers,  Warehousemen,  and  other  Bailees.  Py  William 
Nichols,  Esq  of  Lincoln's  Inn,  Barrister  at  Law.  Wjth  additional 
notes  and  references  lo  American  Decisions,  by  William  Halsted 
Jun.  Esq. 

In  conformity  to  the  Act  of  Congress  of  the  United  States,  entitled 
"  An  Act  for  the  encouragement  of  Learning,  by  securing  the  copies 
of  Maps,  Charts,  and  Books,  to  the  authors  and  proprietors  of  such 
copies,  during  the  time  therein  mentioned."  And  also  to  an  Act, 
entitled  •*  An  Act,  supplementary  to  an  Act,  entitled  an  Act  for  the 
encouragement  of  Learning,  by  securing  the  copies  of  Mips,  (harts, 
and  Books,  to  the  authors  and  proprietors  of  such  copies,  during  the 
times  therein  mentioned,  and  extending  the  benefits  thereof  to  the 
arts  of  designing,  engraving,  and  etching  historical  and  other  prints." 

FRED.   I    BETTS, 

Clerk  of  the  Southern  District  of  New-York. 


PREFACE. 


In  publishing  a  new  edition  of  the  present  Essay,  the 
object  in  view  has  been  to  render  a  work  of  great  and 
acknowledged  merit  of  some  degree  of  practical  utility ; 
and,  by  combining  the  decisions  of  our  courts  with  the 
masterly  and  elegant  exposition  of  the  general  princi- 
ples upon  which  they  are  established,  to  make  it  acceptr 
able  to  a  more  numerous  class  of  persons.  For  this  pur- 
pose, the  various  cases  upon  the  different  species  of  bail- 
ments have  been  collected  and  arranged  in  the  notes  ; 
and  as  these  upon  the  subject  of  carriers  are  numerous, 
the  note  upon  that  part  of  the  work  has  unavoida- 
bly extended  to  some  length,  but  not  so  much  so, 
it  is  hoped,  as  to  prove  inconvenient  to  those  who  may 
be  desirous  of  perusing  the  text.  The  authorities  in  the 
Civil  Law,  from  whence  the  important  principles  dis- 
closed in  the  following  Essay  have  been  derived,  are  also 
referred  to,  and  the  laws  of  foreign  countries  have,  in 
some  few  instances,  been  remarked. 

It  is  proper  to  add,  that  of  the  former  edition,  pub- 
lished by  Mr.  Balmanno,  a  few  references  to  authorities 
inserted  in  the  commencement  of  that  edition,  have  been 
retained,  and  also  one  or  two  notes  which  are  to  be  found 
in  the  concluding  part  of  that  work. 

3,  Inner  Temple  T.ane,  ) 
Ibth  March,  1823.      \ 


THE 

CONTEIVTS. 


*^*  The  paging  of  the  original  Edition  is  preserved  in  the 
margin  of  the  Essay. 


Page. 
1—4 


Introduction        ------- 

The  Subject  proposed         _.----  4 

I.  The  Analysis         -------      4     11 

II.  The  History *  *! 

1.  Jewish  and  Athenian  law         -         -         -         -         11,12 
3.  Roman  law         --'--.-         "  1^ 

Prejudices  against  it         *         -         -         -         -      _         12 

Distinction  between  the  private  and  public,  the  rational 

and  positive,  laws  of  Rome         -         -         -  13,14 

Two  famous  laws  of  Ulpian         -         -         -  14 — 16 

Critical  remarks  on  them         -         -         -         -        17 — 21 

Definitions  and  rules         -----     21     23 

System  of  J.  Godefroi         -         -         -         -         -      24, 25 

Opinions  of  Zasius  and  Donellus         -        -  25,26 

System  of  Le  Brun         -----        2/     29 

Vindication  of  the  old  system  by  Pothier  29 — 31 

Observations  on  Le  Brun  -         -         -  32 — 34 

3.  English  law         .-----"  ^^ 

Lord  Holt's  division  of  bailments         -         -         -  35 

New  division  and  definitions        -         -  -      35,36 

,  1.  Law  of  Deposits         -         .         -         .         -  36 

Bonion's  case         ------    36 — 40 

Mosaic  laws         ------  39 

Southcote's  case         -----         41 — 45 

Rules  and  exceptions     -         -         -         -  46 — 50 

Oiecian  and  Arabian  laws         -         -         -  50 — 52 

2.  Law  of  Mandates  -----  52,  53 
Distinction  between  nonfeasance  and  misfeasance  54 — 57 
Case  of  Coggs  and  Bernard  -  -  58 — 62 
Exceptions  to  the  rule             -         -         -         -  63 

3.  Law  of  Loans  for  Use  -  -  -  -  63 — 65 
Criticism  on  Bracton        -        -        -        *         64,  note 


VI  CONTENTS. 

Opinion  of  Puffendorff  disputed  -  -  -  66,67 
Cases  and  ^iisiiiictions  ...         -         gy — jq 

Controversy  among  the  Civilians  -         -  70 

txcf'lJtions  to  til  •  rule  -         .         -         -  -       72 

Mosaic  and  Attic  laws     -----      73574 

4.  Law  of  Pledges         -         -         -         _         .  7 

Doctrine  of  Lord  Coke  denied  -  .  -  75,76 
Conjectured  criticism  of  Nooilt         -         -         -  yQ 

Case  in  the  Book  of  Assises  -  -  -  Y7 — 79 
L'>rd  Cuke's  reasons  contested  -  -  -  79  S3 
Turkish  law 83—85 

5    Law  of  Hiring         --._--  85 

1.  Hiring  of  a  Thing  -----  i6. 
Lord  Holt's  doctrine  explained  -  -  86,  87 
Rules  and    remarks  -         .         -         .  88 — 90 

2.  firing  of  Work  -  -  -  -  -90,91 
Law  concerning  Innholders  -  .  -  92 — 96 
Remarks  on  S^t.  German  -  -  -  -  gj,  98 
Law  concerning  Factors  and  Traders  -  98,  99 
Mahomedan  Law  -_,_.-  (jg 
Rules  and  distinctions  ...  lOl 
Celebrated  law  of  Alfenus         -         -         .         .     102 

3.  Hiring  of  Carriage  -  -  _  _  .  102 
Exception  from  the  general  rule         -         -         -    104 

Modern  cases 105,  106 

Law  concerning  masters  of  vessels  -  106 — 109 
Case  of  Lane  and  Cotton  -  -  -  109,110 
Criticism  on  Doctor  and  Student         -  110,  note 

4.  Laws  of  the  Northern  nations         -         .         -     m — 194 

5.  Laws  of  the  Britons         -         -         .         -         .  ii2 

6.  Laws  of  the  Indians             -         .         .         _         113 — 116 
HL   The  Synthesis 117 

l.Defini;ions 117,118 

2.  Rules  -         -         -         -         -    ■     -         -         -      119 

3.  Propositions  --....    119,120 

4.  Exceptions         .......         12O 

5.  General  Corollary  and  Remark         ...         -    122 
Conclusion         -.-.-..         123, 124 


APPENDIX. 
Lord  Raymond's  Report  of  Coggs  v.  Bernard      -        -    i — xx 


TABL.E 


OP 


THE  CASES  CITED. 


A. 

Abbot  V.  Smith,  2  Blac.  947            ....  107  d. 

Amies  V.  Stevens,  1  Stran.  128         ....  104  c. 

Anonym.  2  Salk.  655               .....  107  h. 

Astey  V.  Emery,  4  M.  &  S.  262      -         -         -         .  106  d. 

Aston  V.  Heaven,  2  Esp.  N.  P.  C.  533             -         .  103  a. 

Attersol  v.  Briant,  1  Camp.  409       ....  107  h. 

B. 

Baglehole  V.  Walters,  3  Camp.  154  ...      69,  n  4. 

Baldway  v.  Ouston,  1  Vent.  71        -         -         -         -  95  a. 

Baldwin  v.  Cole,  6  Mod.  212  -  -         -         -  107  f. 

Barcroft's  Case,  All.  93 107  s. 

Barker  v.  M'Crae,  3  Camp.  144      ...         -    107  h.  p. 
Bastard  v.  Bastard,  2  Show.  81         -         -         -         -  103 

Batson  v.  Donovan,  4  Barn.  &  Aid.  21       38  a.  103  f.  h.  105  e. 
Beck  v.  Evans,  16  East,  245  103  g.  104  k.  105  c.  107  m. 

Beedle  v.  Morris,  Cro,  Jac.  224      -         -         -         -        94,  95 

Bennett  v.  Mellor,  5  T.  R.  273        -         -  -         -         94,  95 

Bignold  V.  Waterhouse,  1  M.  &  S.  26l  -  -  104  a. 

Bird  V.  Thompson,  1  Esp.  N.  P.  C.  339  -         -      107  c.  o. 

Birkett  V.  Willan,  2  B.  &  A.  356  -         -     105  d.k.  1071. 

Bl;ike  V   Nicholson,  3  M.  &  S.  I67  -         -  91,  105  n. 

Bodenham  V.  Bennett,  4  Price,  31  -         -  105  b.  d.k. 

Bonion's  Case       .......  3Q 

Boson  V.  Sandford,  Salk,  440  -         .  103  b.  107  c.  e. 

Bothlingk  v.  Inglis,  3  East,  380       -         -         -         -  106  i. 

Boucher  v.  Lawson,  Ca.  Temp.  Hard.  194  103  b.  107h. 

Boville  v.  Bradbury,  1  Stark.  N.  P.  C.  136       -  97  a.  n  8 

Bowcher  v.  Noidstrom,  1  Taun.  568       -         -  -  89 

Bremin  v.  Currint,  Bull.  N.  P.  45  -         -         -         105  nor. 

Brenan  v.  Currint,  MSS.  Selw.  N.  P.  1280      -         -  ib. 

Bromley  v.  Coxwell,  2  Bos.  &  Pull.  439  -         -  107  f, 

Brotherton  v.  Wood,  3  Bro   &  Bin.  54  -         '  107  e. 

Brown  v.  Crump,  1  Marsh  R.  567  .         -        -  90 


viii  CASES  CITED. 

Browa  v.  Hodgson,  2  Camp.  36  -  -  -•  106c.  107  h. 
Buck  V.  Hatfield,  5  B.  &  .\.  632  ...  io6 
Buckman  V.  Levi,  3  Camp.  414  -  -  103  f.  107  n. 
Buddie  V.  Wilson,  6  T.  R  369  -  -  -  -  107  c. 
Bullock  V.  Domitt,  6  T.  R.  650  -  -  -  -  45 
Burgess  V  Clements,  4  M.  &  S.  306,  311  -  -  94,95, 
Bush  V.  Steiiira  in,  I  Bos.  &  Pul,  404  -  -  89 
Busk  V.  Davis,  2  M.  &  S.  397  -  -  -  86,  106  q. 
Butler  V.  Heane,  2  Camp.  415  -  -  -  104i.j.  105 
V.  Woolcott,  2  Bos.  &  Pill.  N.  R.  64  104,  106  a.  g. 


Cailiff  V.  Danvers,  Peake  N.  P.  C.  114  -         -  97  n. 

Case  of  Gravesend  Barge,  2  RdII.  Ab.  567.  -  108 

Cayle's  Case,  8  Rep.  33 94 

Catley  v   Wintringham,  Peake  N.  P.  C.  140  -  105  k. 

Cavenagh  v.  Such,  t  Price,  328  -  103  c  e.  107  h.  i. 

Chase  v.  Westmore,  5  M   &  S.  180        -  91,  105  1.  ra.  n. 

Cheethara  v.  Hara"Soni4T.  R   318       .         -         -  90 

Christie  v.  Griggs,  2  Camp.  79       -         -         -         -  103  a. 

v.  Lewis,  2  Bro.  &  Bin.  110        -         -         -  105  o. 

Churchman  v.  Tunstall,  3  Hard.  l63  -         -         54,  n  4 

Clark  v.  Gray,  4  Esp.  177  -  103  b.  107  k.  1.  104  h. 

Clarke  v.  Hutchins,  14  East,  475  -     103  g.  104  k.  106  b.. 

Clay  V.  Willan,  1  Hen.  Blac."298  -         -         -  105  a. 

Clayton  v.  Andrews,  4  Burr.  2101  ...  49 

V   Hunt,  3  Camp.  27  .         -         -         -  104  j. 

Cobban  v.  Downe,  5  Esp.  N    P.  C.  41  -         I03c.  f. 

Cobden  v.  Bolton.  2  Camp  108  -      104  j,  105  a.  107  n. 

Coggsv.  Bernard,  2  Ld.  Raym.  909        -         -         lOS  d.  104c. 
Collins  V.  Onglev,  Sel.  N.  Pri.  1280       -  -         -  105  m. 

Cooke  V.  Ludlow,  2  Bos   &  Pul.  N.  R.  119  -       106  a.  b. 

Cooper  V.  Barter,  3  Camp.  5  (n)  ,         .         _  88 

Coth;iy  V.  Tute,  3  Camp    129         -         -         -         -  103  g. 

Countessof  Shrewsbury's  Case,  5  Rep.  13  b.  -  45 

Cowellv.  Simpson,  16  Ves.  275  -         -         -  105  m. 

Cpwper  V.  South,4Taun.  802  -         -         -  107  e. 

Coxe  V.  Harden,  4  East,  211         ....  106  w. 

V.  Lumsden,  Peake  N.  P.  C.  189  -         -  106  w. 

Craven  v.  Ryder,  6  Taun  435  ...  106  w. 

Crawshay  v.  Homfray,  4  B.  &  A.  50  -       105  m.  106  a. 

Croft  V.  Allison,  B  irn.  and  Aid    590  -         -  79,  89 

Cross  V.  Andrewj",  Cro.  Eliz.  622  -         -         -  94,95 

Cummins  V.  Brown,  9  East,  586  -        -        -  106  w. 

D. 

D'Aguila  V.  Lambert,  Ambler,  399        *        -        -  106  d. 


CASES  CITED.  ix 

Dale  V.  Hall,  1  Wils.  281  103  c.  104  b.  10?  b.  e.  i.  n. 

Driubigiiy  V   Duval,  5T.  P.  604,  606  75,  105. 

Davey  v.  Chamberlain,  4  Esp.  N.  P.  C.  229  88 

Davies  v.  James,  5  Burr,  2680  107  h. 

Davis  V.  Reynolds,  4  (.'amp.  267          .  107  b. 

V.  WilbuK  2  Stark.  279  104  i.j. 

Dawes  V   Peck,  8  T.  R    334  106  b.    107  h. 

Dean  v.  Keate,  3  Camp.  4  87 

Devereaiix  v.  Barclay,  2  B  &  A.  704  107  g. 

Dick  V    L>ims(leii,Peake  N.  P.  C.  189  107  b. 

Dicki.n  v   rlifton,  4  Wil.son   319  107  d.  f. 

Dixon  v.  Baldwin,  5  East.  184  1061.  r. 

Doe  v.  Kersie,  Butler's  Fearn    Ex.  Dev.  535  25,  n3 

Down  v.  Fromont,  4  Camp.  41  104  g.  k. 

Drope  V.  Thaire,  J  Latch    127  94,95, 

Duff  v.  Budd,  3  Bro.  and  Bing.  177  105  g.  k.   107  i. 

Durton  V.     olomonson,  3  Bos  &  Pul.  582  106  b.  c.  d. 

Dyer  v.  Ashton,  6  B.  &  A.  3  107  1. 

Doe,  ex  dem.  Pitt.  v.  Laming,  4  Camp.  77  94  b. 

E 

Earl  of  Chesterfield  v.  Duke  of  Bolton,  Com.  Rep.  G27  45 

East  India  Company  v.  Pullen,  I  Stra.  690  104  e. 

Edwards  v    Sherratt,  1  East.  604  103  e. 

Ellis  v.  Turner,  8  T.  R.  533  105  b.  c. 

V  Hunt,  3  T   R.  469  106d.  h.  q. 

Elsee  v   Gatward,5  T.  R.  143  54,  n  4,  61,  n  8.  91 

Evans  V.  Soule,  2M.  &  S.  1  104  h.k.  105 

Eyre  v.  Durnford,^!  East.  318  70.  n  5 

F 

Fail  v    Pickford,  2  Bos.  &  Pul.  234  107  1. 

Ferse  v.  Wray,  3  East,  93  106  e. 

Flewellin  v.  Rave,  1  Bulsti;ode.  68  9I 

Fituirane,  v.  Small,  I  Esp    N.  P.  C.  315  44.  75,  n  1.  76,  81 

Forw  Md  v    Pittard,  I  T.  R.  33  104  a.  c. 

Fowler  v.  M'Faggart,  7  T    R.  442  1061. 

Freeman  v.  East  India  Company,  1  Dow.  &  Ryl.  234  107  f.  g- 

G 

Gale  V.  Reed,  8  East,  89  10 
Garhutt  V.  Watson,  1  Dowl.  &  Ry.  219  49 
Garnett  v.  W  iHan,  5  B  &  \  53  105  b.  c.  f.  h  i.  k. 
Garside  V.  The  Proprietors  of  the  Trent  and  Mersev  Naviga- 
tion, 4  T.  R.  581  96  a.  n  7-  104 d. 
Grllev  v.  Clark,  Cro.  Jac  189  94 
G.t.bon  V.  P-iynton,  4  Burr.  2301  103  g.  h.  i.  104  h.  105  d. 
Gibson  V.  Wells,  i  Bos.  &  Pul.  N.  R.  290  90 


X  CASES  CITED. 

Gi!>boiirnc  v.  llmst,  1  .S,tlk..  249  103  a. 

Godi.ey  V.  Fur/xs  3  P.  Will.  185  106  c. 

Golden  V.  M.uiiimg,  S  W  lis    2  Ul.  9l6,  429  105  i, 

Goo('\vinv.  Ul.ickbmue,  1  Hen.  i>lHC   158  53 

Gootihart  V.  Li>\ve,  2  Jac.  .VkJ  VVal.  349  i06  d  e.  i. 

Gurdun  V.  Harper.  7  T   R.  9  80,  n  3 

Gosling  V.  Higgins,  1  Camp.  451  105  k. 

Goveu  V.  Radiiidge,  3  Last.  62  107  e.  f.  b. 

Greaves  v    Ashlin,  3  Camp   426  80 

Green  v.  Greenb.mk.,  2  Marsh.   485  107  e. 

V.  New  River  Company,  4  T,  R.  589  107  o. 

Griffin  v.  Langlield,  3  Camp.  225  106  b. 

Groves  V.  Buck,  3  M.  &  S-  178  49 

H 

Hallle  V.  Smith,  1  Bos.  &  Pul.  563  i06w. 

Hall  V.  Tickard,  3  Camp.  187  80 

Hallet  V.  East  India  Company,  4  Burr.  1120  107  k. 

Hanmiond  v.  Anderson,  1  N    R.  69  106  p. 

Hanson  V.  Arraitage,  5  B    &  A.  557  106  d. 

Hanson  v.  JMeyer,  6  East.  514  106  p.  86 

Harmaii  v    Andeison,  2  Camp.  243  106  p. 

Harris  v.  Baker,  4  M.  &  S.  27  89 
Harris  v.  Packwood,  3  Taun.  272  104  g.  105  a.  197  m. 
Hawkins  v.  Kutt,  Peake  N.  P.  C.  186                        103  f,  106  a. 

Hmde  V.  Wiiitehouse,  7  East.  571  86,  106  p. 

H.rst  V.  Ward,  3  T  R.  497  10()  m. 

Hon  re  v    Parker,  2  T.  R  376  75,  n  8 

Horkless  v.  Miichell,  4  Esp  86                         _  107  o 

Hodgson  V    FuUarton,  4  Taun    787                 "  103  d 

■ V   Loy,  7  T   R  445  106  c.  g 

Hoist  V  Pownal,  1  Esp   N  P.  C  240  106  n 

Ho 'per  V   PanKsbottom    4  Camp    121  75.  n  8 

Horncdstlc  v  Farren,  3  B-  &  A   497  105  n 

Howarth  V.  Pickford,  3  B   &  P-  44  n.  (a)  106 

Hunter  v   Beal.  3  T-  R  466  106  h  1 

V   M'Taggart,  7  T.  R.  442  106  i 

V-  Princep,  10  East,  378  105  n 

Hurry  v  Mangles.  1  Camp   452  106  p 

Hussey  V.  C:hristie,9  F^ist,  426  105  o 

Hutton  V.  Bohon,  1  H   Blac.  299  n   l-  107  k.  1 

V  Osborne,  Selw-  i\.  P.  4th  Ed-  282  n.  103  d 

V  Bragg,  2  Marsh,  345  105  I  m 

Hyde  v.  Trent  and  Mersey  Navigation  Company,  5  T-  R.  396 

104  f.  105  i.  k 

I 

Iggnlden  v   ?'lay,  7  East,  241  10 

Inglis  V.  Usher  wood  J  1  East,  515  106  i 


CASES  CITED.  xi 

Izett  V.  Mountain,  4  East,  371  105  a 

J. 

Jackson  v   Rogers,  2  Shnv.  129  103  e 

James  v-  Jones,  3  Esp    N-   P   C  41  103  f. 

Jenkins  v    Reynolds,  3  Bto.  &  Bin-  14  49 

Jervisv.  H;iyes,  2  Stran    1083  107  o. 

Jones  V.  Pearle,  Stran    566  95,  105  1. 

Junes  V.  Thiirloe,  8  Mod.  172  105  1. 

Joseph  V.  Knox,  3  Camp-  320  107  h. 

K. 

Kenrig  v-  Eggleston,  Aleyn,  93  103  h. 

Kerr,  v   VVillan,  2  Stark.  \-  P    C  53  104  j. 

Kettle  V   BronisHll,  Willes  Rep    IJl  42 

Key  worth  v-  Hill,  3  B-  and  A  637-  107  f. 
Kmlock  V.  Craig,  3  i-  R-  119  105  n.  106  g. 
The  King  v-  Mayor  &  Burgesses  of  Lyme  Reg's, 

1   Doug  149-  69,  n  4 

King  V.  Meredith,  2  Camp.  N.  P-  C  639  106  b   107  h. 

Kirkman  v.  Shawcross,  6  T   R    14  91,  105  b. 

Kuckein  v.  Wilson,  4  B.  and  A.  443  69,  n  4.  75 

L. 

Lane  v.  Cotton,  1  Ld-  Raym.  646  103  d..l09 

Lanlbrtv.  Administratrix  of  Tyler,  1  Salk.  113  86 

Lacluugh  V.  Towlo,  3  Esp.  N.  P   C.  115  107  ni. 

Lav  V.  Holock,  Peake  N.  P-  C  101  107  p. 

Leeds  v.  Wright,  3  Bos.  and  Pul    320  106  s  v 

Leeson  v-  Hok,  1  Stark.  N-  P.  C  186  104  i 

Leigh  V.  Hewitt,  4  East,   154  89 

Levi  V.  Waterhouse,  1  Price,  280  105  d 

Levy  V.  Waterhouse,  Sel.  N.  P.  4th  Ed.  388  105 

Lickbarrow  v  Mason,  3  T.  R   63.  6  East,  24  106  e  v 

Litt  v.  Cowley,  2  Marsh,  459  106  h  o 

Loescham  v.  Williams,  4  Clamp.  181.  106  v 

Lotan  v.  Cross,  2  Camp   464  80 

Lovett  v    Hobbs,  2  Show.  128  103  a  e 

Lyon  v.  Mells,  5  East,  427  105  c  107  p 

M. 

M'Manus  v-  Cricket,  1  East,  106  89 

M'Coombie  v-  Davies,  7  East,  56  105  n.  l07  f 

6  East,  53S  75 

Mainwaring  v.  Brandon,  3  J   B  Moore,  125  97 

Man  V.  Shiffner,  2  East,  523  105  n 

Martini  v.  Coles,  1  M.  and  S.  140  75 

Martyn  v-  Hendrickson,  1  Salk.  287  107  o 
Maving  v.  Todd,  1  Stark.  N.  P.  C.  72                    103  c  104  g   k 


xii  CASES  CITED. 

Max  V-  Roberts,  2  N-  R-  454  107  d   Iv 
Ui\y,  Assii,Mi(>e  of  Tavlor  v    Harvey,  13  East,  197          52,  n  9 

Meyer  v-  Everth,  4  Camp.  22  Gy,  n  4 

Micldleton  v-  Fowler,  I  Salk   282  103  a  107  i 

Miller  v   Falconer,  1  Camp.  251  107  o 

Mills  V.  Ball,  2  Bos    and   Pul-  457  106  ^  f 

Moore  V.  Morgue,  Cowp.  479  9< 

V    Wilson,  1  T-  R  660  105  k.  106  a    107  h- 

Morse  V-  Slue,  2  Lev-  69  103  b-  e.  h.  104  f 

Mosley  V    Tosset,  1  Mo-  543-  1  Ro-  Abr.  4  91a 

Mulgrave  v   0,<fden,  Cro-  Eliz.  219  34 

Munn.  V-  Baker,  2  Stark   N   P.  C-  256  104  i-  105  a 

Wytton  V.  Cock,  2  Str-  1099  122 

N. 

Naylor  v-  Mantrles,  1  Esp-  N-  P-  C  109  106 

Nelson  V.  Mackintosh,  1  Stark-  N   P-  C  238  53.  n  3-  54 

Newsom  v-  Tliornton,  6  East,  17  106  w 

Nicholson  v-  Mounsev.  15  East,  384.  89   109 

Willan,  5  East,  506-  104  g-  105  a  i 

Nix  V.  Olive,  Abbott  on  Shipping  4th  Ed-  403-  107  b. 

Noble  V.  Adams,  2  Marsh,  366  106  i.  107  h. 

Northey  v-  Fieid,  2  Esp-  613  106  h  n 

O. 

Ode  v.  Atkinson,  1  Marsh,  328  106  w 

OTive  V.  Eanies   2  Stark-  N-  P-  C.  181  107  n 

Oppenheim  v   Russel,  3  Bos.  and  Pul-  42  106  a 

(Jwen  v    Lewyn,  2  Salk   655  107  h 

Ovvenson  v.  JMorse,  7  T-  R.  64  106  m 

P- 

Patterson  v-  Tash,  2  Stran-  1  178  75 

Parkhurstv.  Foster,  Carth-  417  94 

Parker  v.  Flint,  12  IVlod-  254-  94 

Pa'  kinson  v-  Lee,  2  East,  322  69,  n  4 

Payne  v-  Rogers,  2  Hen-  Blk-  350  90 

Pitt  V    Laming   4  Camp-  TT  94 

Pickering  v-  Dowson,  4  Taun  779  69j  n  4 
Prpprictors  of  the  Trent  iNavigation  v.  Wood,  3  Esp- 

N    P-  C  231  104  b-  d 

Powell  v-  Lavton,  2  Bos-  and  Pul-  N-  R-  3l5.  107  d 

Powley  v.  Walker,  5  T-  R-  373  89 

Powtuary  v-  Walton,  1  Roll-  Abr-  10  61 


CASES  CITED.  xiii 

R. 

Railt  V.  Mitchell,  4  Camp.  146  105  n 

Rami  v-  Hu{rhes,7  T  R  350  n   (a)  86 

Ratcliff  V-  Davis,  Yelv.  78 

Rich  V.  Kneehuid,  Cro.  Jac-  330  103  c  104  d 

Richardson  v   Atkinson,  1  Stran-  57^5  107  g 

V.  Goss,  3  Bos.  &  Pul.  127  106  o 

Robinson  v   Dunmore,2  Bos   &  Pul.  419  103  b.  d.  104  e. 

Roe  dem.  Earl  of  Berkley  v-  Abp.  of  York,  6  East,  104         10 

Rogers  V.  Head,  Cro-  Jac-  262  103 
Roskell  V-  Waterhouse,  2  Stark-  462  104  k.  107  k,  m 
Ross  V.  Johnson,  5  Burr.  2825  103  c  107  f-  h 
Rooth  v-  Wilson,  1  B   &  A.  59                              53,  n  2-  79-91 

Rorheroe  v-  Elton,  Peake  N-  P-  C  84  107  o 

Rowe  V-  Pickford,  8  Taun- 83  106  v 

Rubery  v-  Jervoise,  1  T.  R.  234  10 

Ruck  V-  Hatfield,  5  B    &  A    632  106  i 

Rugg  V-  Minett,  11  East,  210  86.  106  p. 

Rushforth  v-  Hadfield,  6  East,  519  ^  -.qc       -.n. 

— ,  7  East,  226  ^ 

,7  East,  224  91 

S 

Sanders  v.  Spencer,  Dyer,  266  95 

Sandler  v-  Waketieid,  4  B.  &  A-  595  49 

Sammell  v-  Wright,  5  Esp   N.  P   C-  263  88 

Sargent  v-  Morris,  3  B-  &  A.  278  107  h 

Saville  V-  Campion,  2  B  &  A-  503  105  o 

Scott  V-  Pettit,  3  Bos-  &  Pul   469  106  v 

Scare  v.  Prentice,  8  East,  348  99 

Sedden  v-  Senate,  13  East,  74  10 

Selway  v-  Holloway,  1  Ld-  Raym-  II6  103  f 

Sheels  v-  Davis,  4  Camp-  119  106a 

Sheply  V.  Davis,  l  Marsh,  252  106  9 

Shiells  V   BlacklDurne,  1  Hen-  Blk  l62  52,  n  2-  10 

Shipley  v.  Kynier,  1  M.  &  S-  587  75 

Siffkin  v-  Wray,  6  East,  341  106  g 

Skinner  v-  Upshaw,  I  Ld-  Raym.  752  105 

SI  Uer  V   Baker,  2  Wils   359  99 

Sleat  v-  Fagg,  5  B    &  A    342  105  i.  104  a 

Slubey  V-  Hayward,  2  H.  Blk-  504  106  o 

Smith  V-  Goss,  1  Camp.  182  106  g  m 

V.  Young,  1  Camp   439  I07g 

V   Home,  8  Taun.  J  44  105  d.  107  m 

Snee  v-  Prescott,  1  Atk-  248  IO6  c.  d. 

Sodergren,  v.  Flight,  6  East,  622  105  n-  o 

Solomons  v-  Nissen,  2  T-  R  674  106  w. 

Southcote's  Case,  4  Rep-  83  b-  4I 


xiv  CASES  CITED. 

Spear  v.  Travers,  4  Camp.  251  106  q 

Spears  v-  Hartley,  3  Esp.  N-  P-  C  810  106 

Spencer  V.  Gouldin?,  Peake  N  P   C  12D  lO?  n 

Spitty  V.  Bowen,  Peake  N-  P-  C.  53  107  p 

Stevenson  v-  Blakelock,  1  M   &  S.  543  105  ra 

Stokes  V  La  Riviere,  3  East;,  397  106  i 

Stoveld  V.  Hiiahes,  14  East,  308  106  p 

Stoveld  V  Brewin,  2  B  &  A.   Il6  1071 

Sreeter  v-  Horlock,  1  ,Bing.  34  107 

Strong  V  Natally,  1  Bos-  &  Pul    N-  R-  l6  105  k 

Strother  v.  Willan,  2  Camp  24  107  n 

Stuart  V.  Crawley,  2  Stark-  324  103  g 

Sutton  V.  Mitchell,  I  T  R-  18  107  r 

Summersett  v  Jarvis,  3  Bro-  &  B-  2  107  f 
Sweet  V.  Pym,  )  East  4                                                105  n.  I061i 

Syeds  v-  Hay,  4  T.  R   250  107  g 

/  T 

Theobald  v  Tregott,  1 1  Mod-  252  107  n 

Thomas  v    Day,  4  Esp    N    P-  C  262  97 

Thompson  v.  Lacy,  3  B  &  A   283  94,  95 

Titchburnie  V.  White,  1  Stran    145  103  g 

Townsend  v    Inglis,  Holt  N    P-  C  278  107  g 

Towers  V  Osborn,  1  Stran    506  49 

Tucker  v  Cracklin,  2  Stark-  N.  P.  C  385  107  k 

Tyly  V.  Morrice,  Carth-  485  103  g 

U 

Upshare  v.  Aidee,  Corny.  25  103  a 

V 

Virtue  V.  Jewell,  4  Camp-  31  107  a.  106  w 

Vale  V.  Bayle,  Cowper,  296  106  c 

Verev-  Smith,  1  Vent-  121  98 

Vernon  v-  Keyes,  4  Taun-  483  69}  n  4 


W 


86 


Wallace  v.  Breeds,  1 3  East,  522 

Warden  v.  Mourrillyan,  2  Esp-  N  P.  C  693  103  c 

Ward  V.  Felton,  1  East,  507  105  n 

Waring  v-  Bell,  4  Esp-  N-  P.  C  22  105  o 

Weall  V.  King,  12  East,  452  107  c.  e 

V/heatley  v.  Low,  2  Cro   667  ^^ 

White  V   Boulton,  Peake,  N-  P.  C  80  103  a 

White's  Case,  Dyer,  158  c  94  c 

Whitfield  V-  Ld-  Le  Despencer,    Cowp-  754  103  d.  109 

Williams  V.  Cranston,  2  Stark-  N-  P-  C  82  103  c  107  i 


CASES  CITED.  xv 

Wilson  V.  Dickson,  2  B.  &  A.  2  107  s 

V.  Freeman,  3  Camp  527  104  k 

Wilsford  V   Wood,  1  Esp.  N-  P.  C.  182  107  b 

Wiseni.'in  V   Vandeput,  2  Vern-  203  106  J 

Withers  v.  Lyss,  4  Camp   240  106  q 

Woodleife  v-  Curteis,  1  Roll-  Abrid-  2  (c)pl.  4  104  c 

Wolfv    Summers,  2  Camp   631  105  o 

Wright  V  Snell,  5  B   &  A  350  l06 

■ V.  Lawes,  4  Esp.  N   P-  C  82  106  h.  s 

V-  Campbell,  4  Burr.  2046  106 

Y 

Yates  V.  Willan,  2  East,  168  1 07 1. 

Yates  V  Rollin,  8  Taun.  293  105  o 

Youl  V.  Harb(.ttle,  Peake  N.  P.  C-  49  107  g-  h 

York  V.  Grindstone,  1  Salk  388  94,95 

Z 

Zagury  v-  Furnell,  2  Camp-  240  106  p 


AN 


ON  THE 

L,AW  OF  BAILMENTS. 


Having  lately  had  occasion  to  examine  with  some  at- 
tention the  nature  and  properties  of  that  contract  which 
lawyers  call  bailment,  or  a  delivery  of  goods  on  a  condi- 
tion, expressed  or  implied,  that  they  shall  he  restored  hy  the 
bailee  to  the  bailor,  or  according  to  his  directions,  as  soon  as 
the  purpose  for  which  they  tvere  bailed  shall  be  answered,  I 
could  not  but  observe,  with  surprise,  that  a  title  in  our 
English  law,  which  seems  the  most  generally  interesting, 
should  be  the  least  generally  understood,  and  the  least 
precisely  ascertained.  Hundreds  and  thousands  of  men 
pass  through  life,  without  knowing,  or  caring  to  know,  any 
of  the  numberless  niceties  which  attend  our  abstruse, 
though  elegant,  system  of  real  property,  and  without  be-  [  2  ] 
ing  at  all  acquainted  with  that  exquisite  logic  on  which 
our  rules  of  special  pleading  are  founded :  but  there  is 
hardly  a  man  of  any  age  or  station,  who  does  not  every 
week,  and  almost  every  day,  contract  the  obligations  or 
acquire  the  rights  of  a  hirer  or  a  letter  to  hire,  of  a  borrow 
er  or  a  lender,  of  a  depositary  or  a  person  depositing,  of  a 
commissioner  or  an  employer,  of  a  receiver  or  a  giver,  in 
pledge  ;  and  what  can  be  more  absurd,  as  well  as  more 
dangerous,  than  frequently  to  be  bound  by  duties  without 
knowing  the  nature  or  extent  of  them ,  and  to  enjoy  rights  of 

1 


2  THE  LAW  OF  BAILMENTS. 

which  we  have  no  j  ust  idea  ?  Nor  must  it  ever  be  forgotten, 
that  the  contracts  above  mentioned  are  among  the  princi- 
pal springs  and  wheels  of  civil  society  ;  that,  if  a  want  of 
mutual  confidence,  or  any  other  cause,  were  to  weaken 
them,  or  obstruct  their  motion,  the  whole  machine  would 
instantly  be  disordered  or  broken  to  pieces  ;  preserve  them, 
and  various  accidents  may  still  deprive  men  of  happiness ; 
but  destroy  them,  and  the  whole  species  must  infallibly  be 
miserable.  It  seems,  therefore,  astonishing,  that  so  im- 
portant a  branch  of  jurisprudence  should  have  been  so 
long  and  so  strangely  unsettled  in  a  great  commercial 
country ;  and  that,  from  the  reign  of  Elizabeth  to  the 
reign  of  Anne,  the  doctrine  of  bailments  should  have  pro- 
duced more  contradictions  and  confusion,  more  diversity 
of  opinion  and  inconsistency  of  argument,  than  any  other 
[  3  ]  part,  perhaps,  of  juridical  learning ;  at  least,  than  any 
other  part  equally  simple. 

Such  being  the  case,  I  could  not  help  imagining  that 
a  short  and  perspicuous  discussion  of  this  title,  an  exposi- 
tion of  all  our  ancient  and  modern  decisions  concerning 
it,  an  attempt  to  reconcile  judgments  apparently  discor- 
dant, and  to  illustrate  our  laws  by  a  comparison  of  them 
with  those  of  other  nations,  together  with  an  investigation 
of  their  true  spirit  and  reason,  would  not  be  wholly  unac- 
ceptable to  the  student  of  English  law;  especially  as  our 
excellent  Blackstone,  who  of  all  men  was  best  able  to 
throw  the  clearest  light  on  this,  as  on  every  other  subject, 
has  comprised  the  whole  doctrine  in  three  paragraphs, 
which,  without  affecting  the  merit  of  his  incomparable 
work,  we  may  safely  pronounce  the  lieast  satisfactory  part 
of  it ;  for  he  represents  lending  and  letting  to  hire,  which 
are  bailments  by  his  own  definition,  as  contracts  of  a  dis- 
tinct species  ;  he  says  nothing  of  employment  by  commis- 
sion ;  he  introduces  the  doctrine  of  a  distress,  which  has? 


THE  LAW  OF  BAILMENTS.  3 

an  analogy  to  a, pawn,  but  is  not  properly  bailed;  and  on 
the  great  question  of  responsibility  for  neglect,  he  speaks 
so  loosely  and  indeterminately,  that  no  fixed  ideas  can  be 
collected  from  his  words.(a)  His  Commentaries  are  the 
most  correct  and  beautiful  outline  that  ever  was  exhibited 
of  any  human  science ;  but  they  alone  will  no  more  form  [41 
a  lawyer,  than  a  general  mapof  the  world,  how  accurately 
and  elegantly  soever  it  may  be  delineated,  will  make  a 
geographer  ;  if,  indeed,  all  the  titles,  which  he  professed 
only  to  sketch  in  elementary  discourses,  were  filled  up  with 
exactness  and  perspicuity,  Englishmen  might  hope,  at 
length,  to  possess  a  digest  of  their  laws,  which  would  leave 
but  little  room  for  controversy,  except  in  cases  depending 
on  their  particular  circumstances ;  a  work  which  every 
lover  of  humanity  and  peace  must  anxiously  wish  to  see 
accomplished.  The  following  Essay  (for  it  aspires  to  no 
higher  name)  will  explain  my  idea  of  supplying  the  omis- 
sions, whether  designed  or  involuntary,  in  the  Commen- 
taries on  the  Laws  of  England. 

I  propose  to  begin  with  treating  the  suhiect  analytically.  Subject  pro- 
and,  having  traced  every  part  of  it  up  to  the  first  princi-  P0"° 
pies  of  natural  reason,  shall  proceed,  historically,  to  show 
with  what  perfect  harmony  those  principles  are  recognized 
and  established  by  other  nations,  especially  the  Romans, 
as  well  as  by  our  English  courts,  when  their  decisions 
are  properly  understood  and  clearly  distinguished  ;  after 
which  I  shall  resume  synthetically  the  whole  learning  of 
bailments,  and  expound  such  rules  as,  in  my  humble  ap- 
prehension, will  prevent  any  further  perplexity  on  this  in- 

(a)  2  Comm.  452,  453,  454.(1) 

(1)  See  Christian's  Edit.  Black.  Com.  vol.  ii.  p.  453.  note  11,  where 
the  learned  commentator's  inaccuracy  on  the  subject  is  also  admitted» 
and  where  a  just  encomium  is  given  to  the  eleTanoo,  tbo  libera!  learfl- 
log,  and  the  sonnd  Jaw  of  this  Rssay, 


4  THE  LAW  OF  BAILMENTS. 

teresting  title,  except  in  cases  very  peculiarly  circum- 
stanced. 
[  5  ]  From  the  obligation,  contained  in  the  definition  of  bailr 

1.  Analysis,  jjjgj^j^  iq  restore  the  thing  bailed  at  a  certain  time,  it  follows, 
that  the  bailee  must  Jceep  it,  and  be  responsible  to  the  bail- 
or, if  it  be  lost  or  damaged  ;  but,  as  the  bounds  of  justice 
would,  in  most  cases,  be  transgressed,  if  he  were  made 
answerable  for  the  loss  of  it  icithout  his  fault,  he  can  only 
be  obliged  to  keep  it  with  a  degree  of  care  proportioned  to 
the  ■nature  of  the  bailment ;  and  the  investigation  of  this 
degree  in  every  particular  contract  is  the  problem  which 
involves  the  principal  difficulty. 

There  are  infinite  shades  of  care  or  diligence,  from  the 
slightest  momentary  thought,  or  transient  glance  of  at- 
tention, to  the  most  vigilant  anxiety  and  solicitude  ;  but 
extremes  in  this  case,  as  in  most  otliers,  are  inapplicable  to 
practice:  the  first  extreme  would  seldom  enable  the  bailee 
to  perform  the  condition,  and  the  second  ought  not  in  jus- 
tice to  be  demanded ;  since  it  would  be  harsh  and  absurd 
to  exact  the  same  anxious  care,  which  the  greatest  miser 
takes  of  his  treasure,  from  every  man  who  borrows  a 
book  or  a  seal.  The  degrees  then  of  care,  for  which  we 
arc  seeking,  must  lie  somewhere  between  these  extremes ; 
and,  by  observing  the  diflerent  manners  and  characters  of 
men,  we  may  find  a  certain  standard,  which  will  greatly 
facilitate  our  inquiry  ;  for,  although  some  are  excessively 
careless,  and  others  excessively  vigilant,  and  some  through 
life,  others  only  at  particular  times,  yet  we  may  perceive, 
■-J  that  the  generality  of  rational  men  use  nearly  the  same  de- 
gree of  diligence  in  the^conduct  of  their  oum  affairs  ;  and 
this  care,  therefore,  which  every  person  of  common  prudence 
and  capable  of  governing  a  family  takes  o^his  own  concern  s 
is  a  proper  measure  of  that  which  would  uniformly  be  re- 
quired in  performing  every  contract,  if  there  were  not 


THE  LAW  OF  BAILMENTS. 

strong  reasons  for  exacting  in  some  of  them  a  greater,  and 
permitting  in  others  a  less,  degree  of  attention.  Here  then 
we  may  fix  a  constant  determinate  point,  on  each  side  of 
which  there  is  a  series  consisting  of  variable  terms  tend- 
ing indefinitely  towards  the  above-mentioned  extremes, 
in  proportion  as  the  case  admits  of  indulgence  or  de- 
mands rigour:  if  the  construction  be  favourable,  a  de- 
gree of  care  less  than  the  standard  will  be  suflicient ;  if 
rigorous,  a  degree  more  will  be  required ;  and,  in  the  first 
ease,  the  measure  will  be  that  care  which  every  man  of 
common  sense,  though  absent  and  inattentive,  applies  to  his 
own  affairs  ;  in  the  second,  the  measure  will  be  that  at- 
tention which  a  man  remarkably  exact  and  thoughtful,  gives 
to  the  securing  of  his  personal  property. 

The  fixed  mode  or  standard  of  diligence  I  shall,  for 
want  of  an  apter  epithet,  invariably  call  Ordinary;  al- 
though that  word  is  equivocal,  and  sometimes  involves  a 
notion  of  degradation,  which  I  mean  wholly  to  exclude ; 
but  the  unvaried  use  of  the  word  in  one  sense  will  pre-  [  "^  ] 
vent  the  least  obscurity.  The  degrees  on  each  side  of 
the  standard  being  indeterminate,  need  not  be  distin- 
guished by  any  precise  denomination ;  the  first  may  be 
called  LESS,  and  the  second  jiore,  than  ordinary  di- 
ligence. 

Superlatives  are  exactly  true  in  methematics ;  they  ap- 
proach to  truth  in  abstract  morality;  but -in  practice  and 
actual  life  they  are  commonly  false ;  they  are  often,  in- 
deed, used  for  mere  intensives,  as  the  most  diligent  for 
VERY  diligent;  (2)  but  this  a  rhetorical  figure;  and  as 
Rhetoric,  like  her  sister,  Poetry,  delights  in  fiction,  hei- 
language  ought  never  to  be  adopted  in  sober  investiga- 
tions of  truth;  for  this  reason  I  would  reject  from  the 

(2)  See  Vinnius  in  Inst,  3.  15.  5.  n.  2. 


THt:  LAW  OF  BAlLMEiNTS. 

present  inquiry,  all  such  expressions  as  the  utmost  care, 
all  possible  or  all  imaginable  diligence,  and  the  like,  which 
have  been  the  cause  of  many  errors  in  the  code  of  an- 
cient Rome,  whence,  as  it  will  soon  be  demonstrated, 
they  have  been  introduced  into  our  books  even  of  high 
authority. 

Just  in  the  same  manner,  there  are  infinite  shades  of 
default  or  neglect,  from  the  slightest  inattention  or  mo- 
mentary absence  of  mind,  to  the  most  reprehensible  su- 
pineness  and  stupidity :  these  are  the  omissions  of  the 
before-mentioned  degrees  of  diligence,  and  are  exactly 
correspondent  with  them.  Thus  the  omission  of  that 
care,  which  every  prudent  man  taJces  of  his  own  property,  is 
the  determinate  point  of  negligence,  on  each  side  of  which 
is  a  series  of  variable  modes  of  default  infinitely  dimi- 
nishing, in  proportion  as  their  opposite  modes  of  care 
infinitely  increase  ;  for  the  want  of  extremely  great  care 
[  8  ]  is  an  extremely  little  fault,  (3)  and  the  want  of  the  slight- 
est attention  is  so  considerable  a  fault,  that  it  almost 
changes  its  nature,  and  nearly  becomes  in  theory,  as  it 
exactly  does  in  practice,  a  breach  of  trust  and  a  devia- 
tion from  common  honesty.  (4)  This  known  or  fixed 
'  point  of  negligence  is  therefore  a  mean  between  fraud 
and  accident ;  and,  as  the  increasing  series  continually 
approaches  to  the  first  extreme,  without  ever  becom- 
ing precisely  equal  to  it,  until  the  last  term  melts  into 
it  or  vanishes,  so  the  decreasing  series  continually  ap- 
proximates to  the  second  extreme,  and  at  length  be- 
comes nearer  to  it  than  any  assignable  difterence :  but 
the  last  terms  being,  as  before,  excluded,  wc  must  look 
within  them  for  modes  applicable  to  practice  ;  and  these 

we  shall  find  to  be  the  omissions  of  such  care  as  a  man 

. i 

(3)  See  Bargalius  de  dolo,  lib,  5.  cap.  5.  sect.  19. 

(4)  SeeD.  17.  1.  29. 


THE  LAW  OF  BAILMENTS. 

of  common  sense,  however  inattentive,  and  of  such  as  a 
very  cautious  and  vigilant  man,  respectively,  take  of  their 
oivn  possessions. 

The  constant,  or  fixed,  mode  of  default  I  hkewise  call 
Ordinary  ;  not  meaning  by  that  epithet  to  diminish  the 
culpability  of  it,  but  wanting  a  more  apposite  word,  and 
intending  to  use  this  word  uniformly  in  the  same  sense : 
of  the  two  variable  modes  the  first  may  be  called  greater, 
and  the  second  less,  than  ordinary  ;  or  the  first  gross,  [  9  ] 
and  the  other  slight,  neglect. 

It  is  obvious  that  a  bailee  of  common  honesty,  if  he 
also  have  common  prudence,  would  not  be  more  negli- 
gent than  ordinary  in  keeping  the  thing  bailed :  such  neg- 
ligence (as  we  before  have  intimated)  would  be  a  viola- 
tion of  good  faith,  and  a  proof  of  an  intention  to  defraud 
and  injure  the  bailor. 

It  is  not  less  obvious,  though  less  pertinent  to  the 
subject,  that  infinite  degrees  of  fraud  may  be  conceived 
increasing  in  a  series  from  the  term  where  gross  neglect 
ends,  to  a  term  where  positive  crime  begins ;  as  crimes 
likewise  proceed  gradually  from  the  lightest  to  the  most 
atrocious ;  and,  in  the  same  manner,  there  are  infinite 
degrees  of  accident,  from  the  limit  of  extremely  slight 
neglect  to  a  force  irresistible  by  any  human  power.  Law, 
as  a  practical  science,  cannot  take  notice  of  melting  lines, 
nice  discriminations,  and  evanescent  quantities ;  but  it 
does  not  follow,  that  neglect,  deceit  and  accident  are  to 
be  considered  as  indivisible  points,  and  that  no  degrees 
whatever  on  either  side  of  the  standard  are  admissible  in 
legal  disquisitions. 

Having  discovered  the  several  modes  of  diligence  which 
may  justly  be  demanded  of  contracting  parties,  let  us  in- 
quire in  what  particular  cases  a  bailee  is  by  natural  law 
bound  to  use  them,  or  to  be  answerable  for  the  omission 
of  them. 


12  THE  LAW  OF  BAILMENTS. 

along,  and  explain  them  in  their  proper  places ;  for  a 
similar  reason,  I  shall  say  nothing  here  of  the  Attic  laws 
on  this  title,  but  shall  proceed  at  once- to  that  nation  by 
which  the  wisdom  at  Athens  wa^  eclipsed,  and  her 
glory  extinguished. 
Romanian.  The  decisions  of  the  old  Roman  lawyers  collected  and 
arranged  in  the  sixth  century  by  the  order  of  Justi- 
nian,(9)  have  been  for  ages,  and  in  some  degree  still 
are,  in  bad  odour  among  EngJishmen:  this  is  an  honest 
prejudice,  and  flows  from  a  laudable  source :  but  a  pre- 
judice most  certainly  it  is,  and  like  all  others,  may  be 
carried  to  a  culpable  excess.  (1) 

The  constitution  of  Rome  was  originally  excellent ; 
but  when  it  was  settled,  as  historians  write,  hy  AUGUSTUS, 
or,  in  truer  words,  when  that  base  dissembler  and  cold- 
blooded assassin  C  Octavius{2)   gave  law  to  millions  of 

(9)  See  Gibbon's  History  of  the  Decline  and  Fall  of  the  Roman  Em- 
pire., chap.  44  ;  1  Bl.  Com.  80 ;  Taylor's  Elements  of  the  Civil  Law, 
47;  Gianone's  Hist,  of  Naples,  b.  3.  c  8. 

(1)  Whatever  prejudices  may  have  formerly  prevailed,  and  it  is  to 
be  hoped,  still  prevail,  against  the  constitutional  maxims  of  the  Roman 
imperial  law,  no  question  surely  can  now  exist  upon  the  propriety  of 
consulting  the  code  of  that,  or  of  any  other  distinguished  people,  for 
the  purpose  of  enlarging  and  liberalizing  the  mind.  The  study  of 
these  Idws,  and  of  the  works  of  many  eminent  writers  upon  general 
law,  who  have  ennobled  the  science  of  jurisprudence  by  their  admira- 
ble productions,  should  engage  the  attention  of  every  student  of  our 
own  laws.  And  in  some  cases  a  knowledge  of  their  writings  is  even 
nccetsary.  since  upon  novel  points  of  commercial  law  they  are  fre- 
quently quoted,  and  become  the  foundation  of  the  decisions  of  our 
courts.  See  1  Bl.  Com.  5;  Halifax's  Analysis  of  the  Roman  Civil 
Law,  Introduction;  Wynne's  Eunomus,  142,  Bythewood's  edition; 
Abbott  on  bhipping,  Introduction  ;  vide  post. 

(2'  Our  author's  antipatliy  to  the  character  of  Augustus  is  also 
pointedly  expressed  in  a  letter  to  I\Ir.  Gibbon,  (Gibb.  Post  Works) 
and  a  principal  cause  there  assigned,  namely,  the  death  of  Cicero, 
does  equal  honor  to  his  sensibilities  as  a  patriot  and  a  man  of  genius. 


THE  LAW  OF  BAILMENTS.  12 

honester,  wiser,  and  braver  men  than  himself  by  the  help 
of  a  profligate  army  and  an  abandoned  senate,  the  new 
form  of  government  was  in  itself  absurd  and  unnatural ; 
and  the  lex  7-egia,{S)  which  concentrated  in  the  prince  all 
the  powers  of  the  state,  both  executive  and  legislative, 
was  a  tyrannous  ordinance,  with  the  name  only,  not  the 
nature  of  a  law  :{b)     had  it  even  been  voluntarily  con- 
ceded, as  it  was  in  truth  forcibly  extorted,  it  could  not 
have  bound  the  sons  of  those  who  consented  to  it ;  for 
"a  renunciation  o^ personal  rights,  especially  rights  of 
"  the  .highest  nature,  can  have  no  operation  beyond  the 
*^ persons  of  those  who  renounce  them."       Yet,  iniqui- 
tous and  odious  as  the  settlement  of  the  constitution  was, 
Ulpian  only  spoke  in  conformity  to  it  when  he  said 
that  "  the  will  of  the  prince  had  the  force  of  law  ;"  that 
is,  as  he  afterwards  explains  himself,  in  the  Roman  em- 
pire ;  for  he  neither  meaned,  nor  could  be  mad  enough 
to  mean,  that  the  proposition  was  just  or  true  as  a  gene- 
ral maxim.  So  congenial,  however,  was  this  rule  or  sen- 
tence, ill  understood  and  worse  applied,  to  the  minds 
of  our  early  Norman  kingSj  that  some  of  them,  accord- 
ing to  Sir  John  Fortescue,  "  were  not  pleased  with 
*'  their  own  laws,  but  exerted  themselves  to  introduce 
"the  civil  laws  of  Rome  into  the  government  of  Eng- 
"  land  ;"(t)     and  so  hateful  was  it  to  our  sturdy  ances- 
tors,(4)   that,  if  John  of  Salisbury  be  created,  "they 
"  burned  and  tore  all  such  books  of  civil  and  canon  law 
"  as  fell  into  their  hands  :"(r/)    but  this  was  intemperate 

(6)D.  1.4  1. 

(c)  De  Laud.  Leg.  Aiigl.  c.  ^3,  34.  {d)  Seld.  in  Fort.  c.  S3. 


(;;)  See  Vinn.  in  Instit.  lib.  1  tit.  2.  and  Gibbon's  Dec.  and  Fall  Rom- 
Emp.  8vo.  edit.  vol.  8.  c  44.  p.  17.  49. 

(4)  See-  1  Blak.  Com.  4.5G.  n.  k.  Hurd's  Second  Dialogue  on  the 
Constitution  of  England.  Barringtou's  Observations  upon  tlie  more 
Ancient  Statutes,  76.  2.  Ed.  GH.  5  Ed. 


IS  THE  LAW  Of  BAILMENTS. 

Distinction  zeal  i  and  it  would  have  been  sufficient  to  improbate  the 
privatp"and  pubHc,  OF  Constitutional  maxims  of  the  Roman  imperial 
puhiic,  the  ra-  \r^^    ^^  absurd  in  themselves  as  well  as  inapplicable  to 

tional  and  '  '■ 

positive  laws   ouF  free  government,  witliout  rejecting  the  whole  system 

of  Rome  />         .  •       •  1  •  1  1        /> 

r  14  1  ®^  private  jurisprudence  as  mcapable  or  answermg  even 
the  purpose  of  illustration.  Many  positive  institutions 
of  the  Romans  are  demonstrated  by  Fortescue,  with 
great  force,  to  be  far  surpassed  in  justice  and  sense  by 
our  own  immemorial  customs  ;  and  the  rescripts  of  Se- 
VERUS  or  Caracalla,  which  were  laws,  it  seems,  at 
Rome,  have  certainly  no  kind  of  authority  at  Westmin- 
ster;  but,  in  questions  of  rational  law,  no  cause  can  be 
assigned  why  we  should  not  shorten  our  own  labour  by 
resorting  occasionally  to  the  wisdom  of  ancient  jurists, 
many  of  whom  were  the  most  ingenious  and  sagacious 
of  men.  What  is  good  sense  in  one  age  must  be  good 
sense,  all  circumstances  remaining,  in  another;  and  pure 
unsophisticated  reason  is  the  same  in  Italy  and  in 
England,  in  the  mind  of  a  Papinian  and  of  a  Black- 
stone. 

Without  undertaking,  therefore,  in  all  instances,  to 
reconcile  Nerva  with  Proculus,  Labeo  with  Julian, 
and  Gaius  either  with  Celsus  or  with  himself,  I  shall 
proceed  to  examine  a  summary  of  the  Roman  law  on  the 
subject  of  responsibility  for  neglect. 
Two  famous         The  two  great  sources,  whence  all  the  decisions  of 

laws  of  UI-  .  11-1  I  £• 

pian.  Civilians  on  this  matter  must  be  derived,  are  two  laws  oi 

IJlpian;  the  first  of  which  is  taken  from  big  work  on 
Sabiniis,  and  the  second  from  his  tract  on  the  Edict :  of 
both  these  laws  I  shall  give  a  verbal  translation  ac- 
cording to  my  apprehension  of  their  obvious  meaning, 
and  shall  then  state  a  very  learned  and  interesting  con- 
troversy concerning  them,  with  the  principal  arguments 
on  each  side,  as  far  as  they  tend  to  elucidate  the  question 
before  us. 


THE  LAW  OF  BAILMENTS.  14 

**  Some  contracts,  says  the  great  writer  on  Sabinus, 
make  the  party  responsible  for  deceit  only  ;  some, 
for  both  DECEIT  AND  NEGLCT.  Nothing  more  than 
responsibility  for  DECEIT  is  demanded  in  deposites  and 
POSSESSION  at  will  ;  both  deceit  and  neglect 
are  inhibited  in  commissions,  lending  for  use,  cus- 
tody after  sale,  taking  in  pledge,  hiring  ;  also 
in  portions,  guardianships,  voluntary  work: 
among  these  some  require  even  more  than  ordinary 
diligence.)  Partnership  and  undivided  proper- 
ty make  the  partner  and  joint  proprietor  answerable 

for  both  deceit    and    NEGLIGENCE."(e) 

*'  In  contracts,  says  the  same  author  in  his  other 
work,  we  are  sometimes  responsible  for  deceit 
ALONE ;  sometimes  for  neglect  also  ;  for  deceit 
ONLY  in  DEPOSITS  J  bccausc,  since  no  benefit  ac-  [  16  ] 
crues  in  the  depositary,  he  can  justly  be  answerable 
for  no  more  than  deceit  ;  but  if  a  reward  happen 
to  be  given,  then  a  responsibility  for  neglect  also  is 
required ;  or,  if  it  be  agreed  at  the  time  of  the  con- 
tract, that  the  depositary  shall  answer  both  for  neg- 
lect and  for  accident  :  but,  where  a  benefit  ac- 
crues to  both  parties,  as  in  keeping  a  thing  sold, 
as  in  hiring,  as  in  portions,  as  in  pledges,  as  in 
partnership,  both  deceit  and  neglect  make  the 
party  hable.  Lending  for  use,  indeed,  is  for  the 
most  part  beneficial  to  the  borrower  only  ;  and, 
for  this  reason,  the  better  opinion  is  that  of  Q.  Mu- 
cius,  who  thought,  that  he  should  be  responsible  not 

(e)  Contractjus  quidam  dolum  malum  duntaxat  recipiunt;  quidam,  et 
dolum  et  culpam.  Dolum  tantum  depositum  et  precarium ;  dolum  et 
culpam,  mandatum  commodatum,  venditum,  pignori  acceptum,  locatum  : 
item  dotisdatio,  tutelae,  negotia  gesta:  (in  his  quidam  et  diligentiara.) 
Societas  et  rerum  communio  et  dolum  et  culpam  recipit.     D,  50.  17.  23. 


16  THE  LAW  OF  BAILMEiM^S. 

"  only  for  neglect,  but  even  for  the  omission  of  more 

**  than  ordinary  diligence."(/) 

Critical  Qnc  would  scarce  have  believed  it  possible,  that  there 

remarks.  i  i  i  i 

could  have  been  two  opinions  on  laws  so  perspicuous  and 

precise,  composed  by  the  same  writer,  who  was  indubi- 
tably the  best  expositor  of  his  own  doctrine,  and  appa- 
rently written  in  illustration  of  each  other ;  the  first 
comprising  the  rule,  and  the  second  containing  the  rea- 
son of  it :  yQt  the  single  passage  extracted  from  the  book 
of  Sabinus  has  had  no  fewer  than  twelve  particular 
commentaries  in  Latin,(g)  one  and  two  in  GreeJc,(h)  and 
some  in  the  modern  languages  of  Europe,  besides  the 
general  expositions  of  that  important  part  of  the  digest, 
in  which  it  is  preserved.  Most  of  these  I  have  perused 
with  more  admiration  of  human  sagacity  and  industry 
than  either  solid  instruction  or  rational  entertainment ; 
for  these  authors,  like  the  generality  of  commentators, 
treat  one  another  very  roughly  on  very  little  provocation, 
and  have  the  art  of  rather  clouding  texts  in  themselves 
clear,  than  of  elucidating  passages  which  have  any  ob- 

(/)  In  contractibus  inteidum  dolum  solum,  interdiim  et  culpam,  praes- 
/  tamui; — dolum  in  deposito — nam,  quia  nulla  utilitas  ejus  versatur,   apud 

quem  deponitur,  merito  dolus  praestatur  solus — nisi  forte  et  merces  acces- 
sit,  tunc  enim,  utest  et  constitutum,  etiam  culpa  exhibetur — aut,  si  hoc  ab 
initio  convenit,  utet  culpam  et  periculum  praestet  is,  penes  quem  deponitur 
— sed,  ubi  tit'-iusquc  utilitas  vevtitur,  ul  in  empto,  ut  in  locato,  ut  in  dote, 
lit  in  pignore,  ut  in  societat",  et  dolus  et  culpcn  praestatur.  Commodatum 
autem  plerumque  solam  utilitatem  continet  ejus,  cui  commodatur — et  ideu 
verior  est  Q.  Mucii  sententia  existimantis  et  culpam  praestandara  et  dili- 
gentiam.     D.  13-  6.  5.  2.  (5). 

(g)  Bocerus,  Campanus,  D'Avezan,  Del  Rio,  Le  Conte,  Rittershusius, 
tiijjlianius,  J.  Godefroi,  and  others. 

(/i)  The  scholium  on  Harmenopulus,  1.  6.  tit.  de  Reg.  Jur.  n.  55-  may  be 
roiisidered  as  a  commentary  on  this  law. 


(.■j)See  Domat.  Civ.  Law,  lib.  1.  tit.  1.  ^3.  and  Vinn.  in  Instit.  lib. 


THE  LAW  OF  BAILMENTS.  18 

scurity  in  the  words  or  the  sense  of  them.  Campanus, 
indeed,  who  was  both  a  lawyer  and  a  poet,  has  turned 
the  first  law  of  Ulpian  into  Latin  hexameters  ;  and  his 
authority,  both  in  prose  and  verse,  confirms  the  inter- 
pretation which  I  have  just  given. 

The  chief  causes  of  all  this  perplexity  have  been,  first, 
the  vague  and  indistinct  manner  in  which  the  old  Roman 
lawyers,  even  the  most  eminent,  have  written  on  the  sub- 
ject; secondly,  the  loose  and  equivocal  sense  of  the 
words  DILIGENTIA  and  culpa  ;  lastly  and  principally, 
the  darkness  of  the  parenthetical  clause  in  his  quidam 
ET  DILIGENTIAM,  which  has  produced  more  doubt,  as 
to  its  true  reading  and  signification,  than  any  sentence  of 
equal  length  in  any  author  Greek  or  Latin.  Miniate  as 
the  question  concerning  this  clause  may  seem,  and  dry 
as  it  certainly  is,  a  short  examination  of  it  appears  abso- 
lutely necessary. 

The  vulgate  editions  of  the  Pandects,  and  the  manu- 
scripts from  which  they  were  printed,  exhibit  the  reading 
above  set  forth ;  and  it  has  accordingly  been  adopted  by 
CuJAS,  P.  Faber,  Le  Conte,  Donellus,  and  most 
others,  as  giving  a  sense  both  perspicuous  in- itself  and 
consistent  with  the  second  law;  but  the  Florentine 
copy  has  quidem^  and  the  copies  from  which  the  Basilica 
were  translated  centuries  after  Justinian,  appear  to 
have  contained  the  same  word,  since  the  Greeks  have 
rendered  it  by  a  particle  of  similar  import.  This  varia- 
tion in  a  single  letter  makes  a  total  alteration  in  the 
whole  doctrine  of  Ulpian  ;  for,  if  it  be  agreed,  that 
diligcntia  means,  by  a  figure  of  speech,  a  more  thaii  or- 
dinary degree  of  diligence,  the  common  reading  will  im-  [  1^  3 
ply  conformably  with  the  second  law  before  cited,  that 
"  some  «f  the  preceding  contracts  demand  that  higher 
"  degree ;"  but  the  Florentine  reading  will  denote,  in 


19  THE  LAW  OF  BAILMENTS. 

contradiction  to  it,  that  "  all  of  them  require  more  than 
*'  ordinary  exertions." 

It  is  by  no  means  my  design  to  depreciate  the  autho- 
rity of  the  venerable  manuscript  preserved  by  Florence; 
for  although  few  civilians,  I  believe,  agree  with  PoLi- 
TIAN,  in  supposing  it  to  be  one  of  the  originals,{7)  which 
were  sent  by  Justinian  himself  to  the  principal  towns  of 
Italy, (i)  yet  it  may  possibly  be  the  very  book  which  the 
Emperor  Lotharius  IL  is  said  to  have  found  at  Amalfi 
about  the  year  1130,  and  gave  to  the  citizens  of  PiSA, 
from  Avhom  it  was  taken  near  three  hundred  years  after, 
by  the  Florentines,  and  has  been  kept  by  them  with  su- 
perstitious reverence  '.(k)  (8)  be  that  as  it  may,  the  copy 

(t)  tpist.  X.  4.Miscell.  cap.  41.  See  Gravina,  lib.  i.  §  141. 
(Jfc)  Tanrelli,  Praef.  ad  Pand.  Florent. 


(7)  See  Gibbon's  Dec.  and  Fall  Rom,  Emp.  8ro  edit.  vol.  8.  c.  44.  p. 
44,  45,  and  notes. 

(8)  The  texts  of  the  Pandects  being  almost  wholly  lost^  accident 
led,  some  time  about  the  year  1137,  to  the  discovery  of  a  complete 
copy  of  them,  at  Amalphi,  a  town  in  Italy,  near  Salerno.  From 
Amalphi  the  copy  found  its  way  to  Pisa,  and  Pisa  having  submitted 
to  the  Florentines,  in  1406,  the  copy  was  removed  in  great  triumph 
to  Florence.  By  the  direction  of  the  magistrates  of  the  town,  it  was 
immediately  bound  in  a  superb  manner,  and  deposited  in  a  costly 
chest.  This  copy  of  it  is  generally  called  the  Florentine  Pandects. 
Formerly  they  were  shown  only  by  torch  light,  in  the  presence  of  two 
magistrates,  and  two  Cistercian  monks  with  their  heads  uncovered. 
They  have  been  successively  collated  by  Politian,  Bolognini,  and 
Antonius  Augustinus,  and  an  exact  copy  of  them  was  published 
in  1553,  by  Franciscus  Taurellus ;  for  its  accuracy  and  beauty, 
this  edition  ranks  high  among  the  ornaments  of  the  press;  it  should 
be  accompanied  by  the  treatise  of  Antonius  Augustinus  on  the  proper 
names  in  the  Pandects,  published  by  him  at  Tarragona,  in  1579. 
About  the  year  1710,  Henry  Brenchman,  a  Dutchman,  was  per- 
mitted, at  the  earnest  solicitation  of  our  George  the  First,  to  col- 
late the  manuscript.  He  employed  ten  years  upon  it,  and  in  the  in- 
vestigation of  various  topics  of  literature  connected  with  the  Justi- 


THE   LAW  OF  BAILMENTS.  .  '  19 

deserves  the  highest  respect ;  but  if  any  proof  be  requi- 
site, that  it  is  710  faultless  transcript,  we  may  observe, 
that,  in  the  very  law  before  us,  acccdunt  is  erroneously 
written  for  cmJimi;  and  the  whole  phrase,  indeed,  in 
which  that  word  occurs,  is  different  from  the  copy  used 
by  the  Greek  interpreters,  and  conveys  a  meaning,  as  [  20  ] 
BocERUs  and  others  have  remarked,  not  supportable  by 
any  principle  or  analogy. 

This,  too,  is  indisputably  clear ;  that  the  sentence,  in 
his  QUIDEM  et  diligcntiam,  is  ungrammatical,  and  cannot 
be  construed  according  to  the  interpretation  which  some 
contend  for.  What  verb  is  understood  ?  Rccipiuni. 
What  noun  ?  Contractus.  What  then  becomes  of  the 
words  in  Ms,  namely  contractihus,  unless  in  signify  among'? 
And  in  that  case,  the  difference  between  quidem  and 
QUIDAM  vanishes  ;  for  the  clause  may  still  import, 
that  *'  AMONG  the  preceding  contracts  (that  is,  in  some 
"  of  them),  more  than  usual  diligence  is  exacted:"  in 
this  sense,  the  Greek  preposition  seems  to  have  been 
taken  by  the  scholiast  on  harmenopulus  ;  and  it  may 
iiere  be  mentioned,  that  diligentia,  in  the  nominative, 
appears  in  some  old  copies,  as  the  Greeks  have  rendered 
it ;  but  AccuRSius,  Del  Rio,  and  a  few  others,  consi- 

nian  Code.  His  elegant  and  curious  Historia  Pandectarum,  pub- 
lished at  Utrecht,  in  l?!^,  gives  an  interesting  account  of  his 
labours;  and  shows,  like  the  labours  of  Welstein  and  Mill,'that  great 
fire  of  imagination,  exquisite  taste,  minute  and  patient  investigation, 
and  the  soundest  judgment  may  be  found  in  the  same  mind.  Some 
have  supposed  that  the  Florentine  manuscript  is  the  autograph  of  the 
Pandects  ;  for  this  opinion  there  is  no  real  ground  or  authority  ;  but 
Brefachman  refers  it  to  the  sixtli  century,  a  period  not  very  remote 
from  the  era  of  Justinian.  Breuchman's  work  forms  a  small  part  of  an 
original  design,  and  is  so  ably  executed  that  all  must  lament  his  having 
left  any  part  of  his  design  unfinished.  See  Butler's  Iloras  Juridicfe 
subsecivse,  62. 

.3 


20  thl:  law  of  bailments. 

der  the  word  as  implying  no  more  than  diligence  in  ge- 
neral, and  distinguish  it  into  various  degrees  applicable 
to  the  several  contracts,  which  Ulpian  enumerates.  We 
may  add,  that  one  or  two  interpreters  thus  explain  the 
whole  sentence,  "in  his  contractibus  qu'idam jurisconsulti 
"  et  diligentiam  requirunt:^^  but  this  interpretation,  if  it 
could  be  admitted,  would  entirely  destroy  the  authority 
of  the  clause,  and  imply,  that  Ulpian  was  of  a  different 
opinion.  As  to  the  last  conjecture,  that  only  certain 
[  21  ]  cases  and  circumstances  are  meaned  by  the  word  quidam, 
it  scarce  deserves  to  be  repeated.  On  the  whole,  I 
strongly  incline  to  prefer  the  vulgate  reading,  especially 
as  it  is  not  conjectural,  but  has  the  authority  of  manu- 
scripts to  support  it ;  and  the  mistake  of  a  letter  might 
easily  have  been  made  by  a  transcriber,  whom  the  pre- 
faces, the  epigram  prefixed,  and  other  circumstances, 
prove  to  have  been,  as  TaurelU  himself  admits,  a 
Greelc.i^)  Whatever,  in  short,  be  the  genuine  words 
of  this  much-controverted  clause  (1),  I  am  persuaded, 
that  it  ought  by  no  means  to  be  strained  into  an  incon- 
sistency with  the  second  law  j  and  this  has  been  the  opi- 
nion o^  most  foreign  jurists,  from  Azo  andALCiAT  down 


(0)  See  Gibbon's  Kom.  Emp.  vol.  8.  p.  44.  note  87. 

(l)Few  verbal  controversies  have  been  equally  important  with 
that  on  the  construction  of  the  disputed  sentence  in  Ulpian's  Commen- 
tary ;  for,  though  the  preponderancy  of  any  of  the  various  opinions 
urged  on  this  subject  may  have  little  or  no  influence  on  the  settled 
maxims  of  our  law,  it  must  be  obvious,  that  the  accuracy  of  the  deci- 
sion is  materially  connected  with  the  clearness  and  arrangement  of  the 
general  doctrine  of  bailments ;  as  the  Roman  jurisprudence  is  the 
source  from  which  this  general  doctrine  is  derived,  the  learned  and 
liberal  lawyer  will  acknowledge  considerable  obligation  to  Sir  William 
Jones  for  the  acute  and  well-supported  reasoning  by  which  he  esta- 
blishes the  true  reading  of  the  clause  ("  in  his  quidam  et  diligentiam,") 
in  opposition  (o  fanciful  conjecture  and  dogmatical  assertion. 


THE  LAW  OF  BAILMENTS.  21 

to  Heineccius  and  Huber  ;  who,  let  their  dissension 
be,  on  other  points,  ever  so  great,  think  alike  in  distin- 
guishing three  degrees  of  neglect,  which  we  may  term 
gross,  ordinary,  and  slight,  and  in  demanding  responsibi- 
lity for  those  degrees  according  to  the  rule  ^before  ex- 
pounded, f  2) 

(2)  As  there  are  three  degrees  of  diligence,  viz.  ordinary  diligence, 
extraordinary  diligence,  and  most  exact  diligence ;  so  there  are  three 
degrees  of  fault  or  neglect.  Lata  culpa,  a  great  fault ;  levis  culpa,  a 
small  fault;  levissima  culpa,  the  smallest  fault  or  neglect.  A  great 
fault  is  a  gross  and  supine  negligence  ;  as  not  to  understand  what  all 
men  are  supposed  to  understand.  Thus  it  is,  if  a  man  should  not 
observe  what  was  publicly  proclaimed  ;  or  when  one  alone  is  ignorant 
of  all  that  which  all  in  the  city  besides  him  are  well  acquainted  with  ; 
or  when  one  leaves  open  his  doors  in  the  night  time.  A  fault  of  this 
nature  is  said  to  be  next  to  deceit,  and  sometimes  termed  absolutely  so ; 
though  it  is  no*t  truly  deceit,  but  only  by  the  presumption  of  law.  A 
small  fault,  is  that  sort  of  negligence  where  a  man  does  not  take  such 
care  about  the  concerns  of  other  men,  as  discreet  and  diligent  men 
make  use  of  about  their  own  affairs  ;  and  this  is  esteemed  a  culpable 
neglect,  though  this  person  is  not  more  diligent  about  concerns  that  a^e 
his  own.  Thus  it  is,  when  one  leaves  open  the  upper  windows  of  his 
house,  whereby  thieves  with  ladders  enter  and  steal  the  goods  of  ano- 
ther man,  which  were  pawned  or  lent.  The  smallest  fault  or  neoflect 
is,  when  a  man  does  not  take  that  care  which  the  most  exact  and  most 
diligent  men  are  wont  to  do ;  as  when  a  man  suffers  a  thing  in  his  cus- 
tody to  be  stolen,  Tt'hich  might  some  way  or  other  have  been  prevent- 
ed ;  as,  not  to  fix  bars  in  the  upper  windows  of  those  chambers  which 
are  y/mote  from  the  family,  and  toward  the  street. 

If  there  is  no  particular  agreement,  these  rules  will  instruct  what 
diligence  is  required  to  make  an  act  not  culpable.  First,  in  contracts 
to  the  advantage  of  the  giver  only,  the  receiver  is  answerable  only  for 
deceit,  and  a  great  fault  or  neglect,  as  in  the  case  of  a  depositum,  or 
any  moveable  thing  delivered  to  a  friend  to  be  kept  for  him.  2dly. 
When  a  contract  is  made  for  the  sake  of  the  receiver  only,  there  de- 
ceit, and  every  fault,  even  the  smallest,  will  affect,  as  in  the  case  of  a 
thing  lent.  3dly.  If  the  contract  is  both  for  the  sake  of  the  giver  and 
receiver,  there  Iheprrson  guilty  ofdereit.  a  ;;reaf  or  small  fai^lt,  must 


21  ■  THE  LAW  01    BAlLMi:rsTS. 

The  law,  then,  on  this  head,  which  prevailed  in  the  an- 
cient Roman  empire,  and  still  prevails  in  Germany,  Spain, 
France,  Italy,  Holland,  constituting^,  as  it  were,  a  part  of 
the  law  of  nations,  is  in  substance  what  follows, 
iu^d "uie"^  Gross  neglect,  lata  culpa,  as  the  Roman  lawyers  most 

accurately  call  it,  dolo  proxima,  is  in  practice  considered 
as  equivalent  to  dolus,  or  fraud,  itself;  and  consists, 
according  to  the  best  interpreters,  in  the  omission  of  that 
[  22  ]  care,  xohich  even  inattentive  and  thoughtless  men  never  fail 
to  take  of  their  own  property :  this  fault  they  justly  hold  a 
violation  Osgood  faith. 

Ordinary  neglect,  Icvis  culpa,  is  the  want  of  that  dili- 
gence which  the  generality  of  mankind  use  in  their  own 
concerns  ;  that  is,  of  ordinary  care. 

Slight  neglect,  levissima  culpa,  is  the  omission  of  that 
care  which  very  attentive  and  vigilant  persons  taJce  of  their 
oivn  goods,  or,  in  other  words,  of  very  exact  diligence. 

Now,  in  order  to  ascertain  the  degree  of  neglect,  for 
which  a  man,  who  has  in  his  possession  the  goods  of  ano- 
ther, is  made  responsible  by  his  contract,  either  express  or 
implied,  civilians  establish  three  principles,  which  they  de- 
duce from  the  law  of  Ulpian  on  the  Edict ;  and  here  it 
may  be  observed,  that  they  frequently  distinguish  this  law 
by  the  name  of  Si  ut  certo,  and  the  other  by  that  of  Con- 
tractus ;{l)(2>)  as  many  poems  and  histories  in  ancient  lan- 
guages are  denominated  from  their  initial  words. 

(/)0i- 1.  5.  §  2-  ff.  Commod.  and  \.  23.  ff.  de  reg.  jur.  Instead  of  ff,  Which 
is  a  barbarous  corruption  of  the  initial  letter  of  TraviWIai,  many  write  D,  for 
Digest,  with  more  clearness  and  propriety. 

bear  the  blame  and  damages  ;  as  in  selling,  letting  to  hire,  the  case  of 
a  pledge,  and  of  partnership.  Sec  Wood's  Institutes  of  the  Civil  Law, 
106.  where  the  reference  to  the  Digest,  from  which  these  principles 
are  derived,  are  pointed  out.  Halifax's  Analysis  of  the  Roman  Civil 
Law,  61. 
(3)  It  may  not  be  amiss,  for  the  sake  of  beginners,  to  explaio  here 


THE  LAW  OF  BAILMENTS.  22 

First,  in  contracts  which  are  beneficial  solely  to  the  own- 
er of  the  property  holden  by  another,  no  more  is  demand- 
ed of  the  holder  than  ^oorf/azV/i,  and  he  is  consequently 
responsible  for  nothing  less  than  gross  neglect  ;(a)  this, 
therefore,  is  the  general  rule  in  deposits  ;(4)  but,  in  re- 

the  method  of  quoting  the  several  parts  which  now  compose  the  Corpus 
Juris  Romano-Civilis-  The  institutions  are  contained  in  four  books, 
each  book  is  divided  info  titles,  and  each  title  into  paragraphs,  of  which 
the  first  described  by  the  letters,  Pr.  or  princip.  is  not  numbered.  The 
Digests,  or  Pandects,  are  in  fifty  books,  each  book  is  distributed  into 
titles,  each  title  into  laws,  and  very  frequently  laws  into  paragraphs,  of 
which  the  first  is  not  numbered.  The  code  is  comprised  in  twelve 
books,  each  of  which  is  divided,  like  the  digests,  into  titles  and  laws  ; 
and  sometimes,  laws  into  paragraphs.  The  novels  are  distinguished  by 
their  number,  chapter,  and  paragraphs. 

The  old  way  of  quoting  was  much  more  troublesome,  by  only  men- 
tioning the  number  or  initial  words  of  the  paragraph  or  law,  without 
expressing  either  the  number  of  the  book  or  title.  Thus,  5  Si  adversvs 
12.  Inst,  de  JVvptiis,  means  the  12th  paragraph  of  the  title  in  the  "  Insti- 
tutions de  Nuptiis,"  which  paragraph  begins  with  the  word,  >S'i  adversvs ; 
and  which  a  modern  civilian  would  cite  thus,  I.  1.  10.  12.  So  1.  30.  D. 
de  R.  J.  signifies  the  30lh  law  of  the  title  in  the  Digests  de  Regidis  Ju- 
ris, according  to  the  modern  way,  thus,  D.  50.  17.  30.  Again,  1.  5.  J  3. 
ff.  dejurejur.  means  the  3d  paragraph  of  the  5th  law  of  the  title  in  the 
Digests  de  Jurejurando :  better  thus,  D.  12.  2.  5.  3.  And  here  note, 
that  the  Digests  are  sometimes  referred  to,  as  in  the  last  instance,  by  a 
double  f,  and  at  other  times  bj  the  Greek  n  or  -.  Halifax's  Analysis 
of  the  Roman  Civil  Law,  2.  2  ed.  Taylor's  Elements  of  the  Civil  Law, 
24.  2  ed.  See  Gibbon's  Rom.  Emp.  vol.  8.  p.  2,  note  1,  for  an  obvious 
improvement  on  the  old  and  confused  manner  of  referring  to  the  civil 
law. 

(4)  A  deposit,  in  the  civil  law,  is  a  contract,  by  which  a  thing  is  com- 
mitted to  the  custody  of  one,  to  be  kept  without  reward,  upon  condi- 
tion that  the  same  thing  shall  be  returned  when  he  that  deposits  the 

[(a)  There  is  an  exception  to  this  rule,  where  the  bailee  by  special 
agreement  extends  his  liability.  The  above  rule  only  applies  to  oases 
where  the  law  fixes  the  liability.    Ld.  Raym,  910.] 


22  THE  LAW  OF  BAILMENTS 

gardlo  COMMISSIONS,  or,  as  foreigners  call  them,  man- 
dates,(5)  and  the  implied  contract,  negotiorum  gestorum, 

thing'  shall  demand  it.  Wood's  Institutes  of  the  Civil  Law,  210.  D.  16. 
3.  1.8.  It  must  be  gratuitous  ;  for  otherwise  it  would  be  a  hiring  and 
letting  to  hire,  where  the  depositary  would  let  out  his  care.  Domat's 
Civil  Law,  part  I.  b.  1.  t.  7.  s.  3.  Wood's  Inst.  218.  The  depositary 
is  bound  to  take  the  same  care  of  the  things  deposited  as  he  does  of 
his  own,  and  to  return  them,  paying  only  for  the  damages  committed 
tlirough  deceit,  or  a  gross  neglect,  for  it  was  designed  to  be  no  advan- 
tage to  him.  but  rather  a  burden.  As  to  a  small  neglect,  he  that  depo- 
sited may  complain  of  his  own  easiness  and  inconsideration,  that  be 
should  put  a  trust  in  a  person  that  vfas  not  so  circumspect  as  he  intend- 
ed. Inst.  3.  15.  3.  D.  bO.  17.  23.  Grotius,  b.  2.  c.  12.  s.  13.  Puf.  b- 
5.  c.  4.S.  7.  Domat's  Civil  Law,  b.  1. 1.  7.  s.  3.  Wood's  Inst,  of  the 
Civil  Law,  218.     Eden's  Elementa  Juris  Civilis,  175. 

By  the  Code  Napoleon,  art.  1927,  a  depositary  is  bound  to  exercise 
the  same  degree  of  care  which  he  employs  in  his  own  affairs.  But  this 
rule  is  applied,  art.  1928,  with  greater  strictness,  First,  if  the  deposita- 
ry has  voluntarily  offered  to  take  charge  of  the  deposit.  2d]y.  If  he 
has  stipulated  for  a  reward.  3dly.  If  the  deposit  has  been  made  solely 
for  the  benefit  of  the  depositary.  4thly.  If  it  has  been  expressly  agreed, 
that  the  depositary  shall  answer  for  every  description  of  default.  A  de- 
positary is  iKjt  responsible,  art-  1929,  for  injuries  resulting  from  irre- 
sistible force,  unless  he  has  been  placed  in  legal  default,  en  demeure, 
for  not  restoring  the  deposit. 

The  various  degrees  of  care  required  by  the  civil  law  from  different 
bailees,  and  referred  to  in  this  and  in  the  following  notes,  will  be  found 
to  correspond  with  the  law  of  England  ;  for  the  general  principles  dis- 
cussed and  established  in  this  Essay,  which  govern  the  different  cases  of 
bailment,  are,  in  various  instances,  susceptible  of  modification  upon 
proof  of  the  character  of  the  particular  bailee,  and  the  care  he  exer- 
cises in  his  own  affairs.  See  post,  p.  47.  The  use  of  superlatives  also, 
which  is  not  uncommon  in  the  civil  law,  in  speaking  upon  subjects  of 
this  nature,  but  which  is  rejected  in  this  Essay,  would  appear  to  require 
a  greater  degree  of  care  than  is  actually  demanded ;  but  in  many  cases 
they  are  interpreted  to  convey  only  a  positive  signification  ;  and,  in 
others,  they  imply  no  more  than  an  ordinary  degree  of  care.  See  Vin- 
nius  in  Inst.  3.  25.  5.  n.  2.  post  87. 

(5)  A  mandate  is  a  contract  by  which  an  affair  is  committed  to  the 
management  of  another,  and  by  him  undertaken  to  be  performed  gratis. 


THE  LAW  OF  BAILMENTS.  '  23 

a  certain  care  is  requisite  from  the  nature  of  the  thing ; 
and  as  good  faith  itself  demands,  that  such  care  be  pro- 
portioned to  the  exigence  of  each  particular  case,  the 
law  irresumesy  that  the  mandatary  or  commissioner,  and, 
by  parity  of  reason,  the  negotiorum  gesto  reengaged  at  the 
time  of  contracting  to  use  a  degree  of  diligence  ndequate 
to  the  performance  of  the  work  underial{:en.(m) 

Secondly,  in  contracts  reciprocally  beneficial  to  both 
parties,  as    in    those    of   sale, (6)    hiring, (7)  pledg- 

(m)  Spondet  diligentiam,  say  the  Roman  lawyers,  gerendo  negotio  paiem. 


He  is  bound,  both  in  dut}'  and  honour,  to  take  care  of  the  affairs  which 
he  has  undertaken  to  look  after,  and  to  manage  them  not  only  with  in- 
tegrity, but  with  diligence  and  exactness.  Although  he  is  negligent  in 
his  own  affairs,  yet  he  onght  to  have  more  circumspection  in  the  con- 
cerns of  others,  which  he  undertakes  to  manage,  than  in  his  own  ;  and 
he  is  accountable  for  the  damage  which  his  negligence  may  have  occa- 
sioned, but  not  for  accidents.  Domat's  Civil  Law,  part  I.  b.  1.  t.  15.  s. 
3.  Wood's  Institute  of  the  Civil  Law,  242.  Inst.  3.  27.  D.  16.  3.  1.  9. 
Grotius,  b.  2.  c- 12-  s.  l3.  Piif.  b.  5.  c  4.  s.  3.  Code  Napoleon,  Code 
Civil,  1.  3.  tit.  13.  ch.  1,2. 

(6)  A  sale,  according  to  the  civil  law,  was  perfected  by  the  bare  con- 
sent of  the  parties,  where  the  price  was  agreed  upon,  although  the 
thing  sold  was  not  delivered,  nor  the  price  paid,  and  the  property  im_ 
mediately  passed  to  the  buyer ;  but  he  was  not  entitled  to  a  delivery 
and  possession  of  the  property  without  first  paying  the  price,  or  other- 
wise satisfying  the  seller.  Inst.  3.  2.  4.  Domat's  Civil  Law,  part  I.  b.  1. 
tit.  2.  s.  1  and  2.  Puf.  b.  5.  c  5.  s.  2.  Wood's  Institute  of  the  Civil  Law, 
230.  Eden's  Elementa  Juris  Civilis,  190.  See  post  86.  n. 

By  the  Code  Napoleon,  art.  1651,  when  the  time  and  mode  of  pay- 
ment is  not  fixed  by  the  terms  of  the  sale,  the  price  must  be  paid  at  the 
time  and  place  of  delivery. 

During  this  intermediate  period,  between  the  completion  of  the  sale, 
and  the  actual  delivery  of  the  article  sold,  the  propertj  was  at  the  risk 
of  the  buyer;  and,  on  the  other  hand,  he  was  entitled,  upon  principles 
of  equal  justice,  to  whatever  benefit  might  accrue  to  it  during  that 
time.  Inst.  3.  24.  3.  But  since  the  contract  was  mutually  beneficial 
!o  th9  buyer  and  seller,  the  latter  was  bound  to  exercise  ordinary  care 


'2^  '  THE  LAW  OF  BAILMENTS. 

i\G,(8)  PARTNERSHIP,(9)  and  the  contract   implied  in 
JOINT  PROPERTY,  such  care  is  exacted  as  every  prudent 


ia  reserving  the  article,  and  was  responsihle  for  losses  which  arose  from 
Jiis  negligence.  Inst.  3.  24.  3.  D.  18.  6.  8.  Grotius,  b.  2.  c.  12.  s.  15. 
Puf.  b.  5.  c.  6.  s.  5.  Domat's  Civil  Law,  part  1-  b.  1-  tit.  2.  s.  3. 

(7)  Locatio-conductio,  is  a  contract  whereby  the  use  of  a  thing,  or  the 
service  and  labour  of  a  person  is  gained  for  some  time  for  a  certain  re- 
ward.— Wood's  Institute  of  the  Civil  Law,  235,  236.  Inst.  3.  25-  5- 
D.  19.  2.  Puf.  b.  5.C.  6.  s.  2.  Grc  b.  2.  c.  l2s.  18.  Domat's  Civil  Law. 
p.  1.  b.  1.  tit.  4.  This  contract  consists  of  many  branches,  but  it  will 
be  sufficient  to  remark  those  which  more  particularly  relate  to  this 
Essay,  and  in  which  goods  are  the  subject  of  bailment.  Artificers  are 
responsible  for  injuries  occasioned  by  their  ignorance  ;  and  are  respon- 
sible if  the  thing  be  stolen,  burnt,  or  damaged  for  want  of  having  been 
laid  up.  in  a  secure  place,  or  for  not  being  carefully  looked  after,  or  if 
it  be  delivered  to  a  wrong  person  by  mistake.  Domat's  Civil  Law,  part 
1.  b-1.  tit.  4.  s.  8. 

The  engagement  between  an  innkeeper  and  a  traveller  is  usually 
formed  without  any  express  covenant,  by  the  traveller's  bare  entry  in- 
to the  inn,  and  depositing  his  baggage  in  the  hands  of  the  master  of  the 
inn,  or  of  those  whom  he  appoints  to  take  care  of  them.  The  innkeep- 
er is  responsible  for  the  acts  of  his  family,  and  of  his  domestics,  accord- 
ing to  the  functions  in  which  they  are  employed-  To  avoid  collusion, 
he  is  answerable  for  thefts,  and  is  bound  to  fake  all  possible  care  of 
goods  entrusted  to  them,  and  is  only  discharged  from  what  may  hap- 
pen by  such  accidents  as  the  greatest  care  could  not  have  prevented. 
— Domat's  Civil  Law,  part  1.  b.  1.  t.  l6.  s.  1.  Code  Napoleon,  art. 
1953. 

In  the  same  manner  the  master  of  a  ship,  or  other  vessel,  who  un- 
dertakes to  carry  goods  and  merchandize  by  sea,  or  those  who  under- 
take the  carriage  of  goods  by  Itnd  or  water,  are  answerable  for  the 
baggage  and  goods  which  they  take  charge  of,  and  are  responsible  in 
the  same  manner  as  innkeepers. — Domat's  Civil  Law,  part  1.  b.  1.  tit- 
16.  s.  2. 

The  Code  Napoleon  upon  commerce,  art- 103,  makes  the  carrier  re- 
sponsible for  the  damage  or  loss  of  goods  in  every  case,  except  where 
the  damage  arises  from  some  vice  inherent  in  the  article,  or  where  the 
loss  or  damage  arises  from  irresistible  force.  With  the  former  exemp- 
?ion  our  law  corresponds ;  for  if  game  or  poultry  become  tainted  and 


THE  LAW  OF   BAILMEiNTS.  23 

man  commonly  takes  of  his  own  goods  ;  and,  by  conse- 
quence, the  vendor,  the  hirer,  the  taker  in  pledge,  the 
partner,  and  the  co-proprietor ,  are  answerable  for  ordina- 
ry  neglect. 

Thirdly,  in  contracts,  from  which  a  benefit  accrues 
only  to  him  who  has  the  goods  in  his  custody,  as  in  that 
of  LENDING  FOR  USE,(1)  an  extraordinary  degree  of  care 


unfit  for  food,  in  the  ordinary  course  of  the  journey,  the  carrier  is  not 
responsible.  But  the  exemption  from  irresistible  force  is  more  exten- 
sive than  that  which  is  given  by  the  law  of  England,  for  the  carrier  is 
answerable  for  losses  occasioned  by  tumultuous  bodies  of  people,  and 
every  other  case,  except  where  they  arise  from  the  act  of  God,  or  of  the 
king's  enemies- 

C8)  A  pledge  creates  a  contract,  in  which  a  thing  is  given  by  the 
debtor  to  the  creditor  for  security  of  the  debt,  upon  condition  that 
when  the  debt  is  paid,  the  same  thing  in  specie  shall  be  returned.  And 
since  the  contract  is  reciprocally  beneficial,  to  the  debtor,  by  procuring 
him  an  advance  of  money,  and  to  the  creditor,  by  securing  to  him  the 
repayment,  the  creditor  is  bound  to  exercise  that  degree  of  care  which 
prudent  men  generally  employ  in  their  own  affairs. — Inst.  3. 15.  4.  with 
Vinnius's  notes.  Domat  on  the  Civil  Law,  part  1.  b.  3.  tit.  1.  Puf.  b. 
5.  c.  10.  s.  13.  Wood's  Institute  of  the  Civil  Law,  219.  D.  13.  7, 14. 

(9)  A  partnership  is  a  contract,  where  money;  goods,  or  labour  are 
put  in  common,  that  each  may  share  in  the  gain  and  loss,  in  proportion 
to  his  contribution. — Puf.  b.  5.  c.  8.  s.  1.  Wood's  Institute  of  the  Ci- 
vil Law,  240.  Inst.  3.  26.  The  care  and  vigilance  which  the  partners 
owe  to  one  another,  is  regulated  by  the  care  which  they  have  of  what 
is  their  own,  and  does  not  extend  to  the  greatest  exactness  that  the 
most  careful  and  diligent  persons  are  capable  of,  but  is  limited  to  make 
them  responsible  for  all  deceit  and  for  all  gross  faults.  For  it  is  suffi- 
cient, if  they  exercise,  with  reference  to  the  partnership  property,  tbs 
same  diligence  which  tiiey  employ  in  their  own  affairs.  And  if  a  part- 
ner exercises  this  degree  of  care,  he  will  not  be  responsible  for  a  slight 
fault,  for  the  other  partners  ought  to  blame  themselves  for  not  hav- 
ing made  choice  of  a  more  careful  partner.  Domat's  Civil  Latv,  b.  1, 
tit.  8.  s.  4.  Inst.  3.  26.  9.  with  Vinnius's  notes.  D.  17.  2.  52.  4.  Puf. 
b.  5.  c.  8,  s.  2.     Gro.  b.  2.  c.  12;  s.  24. 

(1)  A  commodatum  is  a  contract  in  which  a  thing  is  granted  gratis  to 

4 


[24] 


23  THE  LAW  OF  BAILMENTS. 

is  demanded  ;  and  the  borroiver  is,  therefore,  responsible 
for  slight  neghgence. 

This  had  been  the  learning  generally,  and  almost  una- 
nimously, received  and  taught  by  the  doctors  of  Roman. 
law ;  and  it  is  very  remarkable,  that  even  Antoine  Fa- 
VRE,  or  Faher,  who  was  famed  for  innovation  and  para- 
dox, who  published  two  ample  volumes,  De  Erroribu^ 
Interpretum,  and  whom  Gravina  justly  calls  the  boldest 
of  expositors  and  the  keenest  adversary  of  the  practisers,{n) 
discovered  no  error  in  the  common  interpretation  of  two 
celebrated  laws,  which  have  so  direct  and  so  powerful 
an  influence  over  social  life,  and  which  he  must  repeat- 
edly have  considered  :  but  the  younger  Godefroi,  of 
Geneva,  a  lawyer  confessedly  of  eminent  learning,  who 
died  about  the  middle  of  the  last  century,  left  behind  him 

(n)  Orig.  Jur.  Civ.  lib.  i.  §  183.(2) 

another  for  a  certain  use,  upon  condition,  that,  after  the  use  of  it,  the 
same  thing  shall  be  returned  in  as  good  plight  as  it  was  when  it  was 
first  delivered.  The  borrower  is  not  responsible  for  injuries  which 
happen  in  the  use  of  the  article  for  the  purpose  and  during  the  time  for 
which  it  was  lent,  for}  the  lender  has  tacitly  consented  not  to  demand 
any  indemnity  upon  that  account.  Puf.  b.  5.  c  4.  s.  6.  Wood's  In- 
stitute of  the  Civil  Law,  215.  But  he  is  bound  not  merely  to  exercise 
that  degree  of  diligence  which  he  employs  in  his  own  transactions,  but 
that  care  which  very  diligent  persons  employ  in  their  own  affairs,  and  is 
consequently  answerable  for  whatever  losses  may  happen  for  want  of 
such  care.  Inst.  3. 15.  2.  Domat's  Civil  Law,  part  1.  b.  1.  tit.  5.  s.  2. 
Puf.  b.  5.  c.  4.  s.  6.     Gro.  b.  2.  c.  12.  s.  13. 

(2)  The  whole  of  Gravina's  animadversion  deserves  to  be  quoted  for 
the  implied  and  salutary  lesson  it  offers  to  the  juvenile  Quixotes,  whose 
paradoxical  weapons  are  frequently  displayed  with  such  exulting  con- 
fidence in  the  field  of  literary  controversy  : — "  Tandem  in  Antonio 
"  Fabro  consistam  audacissimo,  et  pragmaticorum  faoste  vehementissi- 
"  mo:  qui  aliis  quidem  in  operibus  acumenm agis,  quam  veritatem  praea- 
*'titit :  in  codice  vero  suo  usum  rerum,  et  ingenii  sui  jam  maturi  reddi- 
"  dit  nobis  utilitatera ;  ut  meliora  sint  iUius,  quae  minus  amta.^'' 


THE  LAW  OF  BAILMENTS.  24 

a  regular  commentary  on  the  law  Contractus,  in  which  he 
boldly  combats  the  sentiments  of  all  his  predecessors, 
and  even  of  the  ancient  Romans,  and  endeavours  to  sup- 
port a  new  system  of  his  own. 

He  adopts,  in  the  first  place,  the  Florentine  reading,  l^dgj",^^  ^' 
of  which  the  student,  I  hope,  has  formed,  by  this  time, 
a  decided  opinion  from  a  preceding  page  of  this  Essay. 

He  censures  the  rule  comprised  in  the  law  Si  ut  certo 
as  weak  and  fallacious,  yet  admits,  that  the  rule,  which 
he  condemns,  had  the  approbation  and  support  of  Mo- 
DESTiNUS,  of  Paulus,  of  Africanus,  of  Gaius,  and 
of  the  great  Papinian  himself;  nor  does  he  satisfacto- 
rily prove  the  fallaciousness  to  which  he  objects,  unless 
every  rule  be  fallacious  to  which  there  are  some  excep- 
tions. He  understands  by  diligentia,  that  care  which 
a  very  attentive  and  vigilant  man  takes  of  his  own  pro-  [  25  1 
perty ;  and  he  demands  this  care  in  all  the  eight  con- 
tracts, which  immediately  precede  the  disputed  clause  ; 
in  the  tivo  which  follow  it,  he  requires  no  more  than  or- 
dinary dWigence.  He  admits,  however,  the  three  degrees 
of  neglect  above  stated,  and  uses  the  common  epithets, 
levis  and  levissima  ;  but,  in  order  to  reconcile  his  system 
with  many  laws  which  evidently  oppose  it,  he  ascribes 
to  the  old  lawyers  the  wildest  mutability  of  opinion,  and 
is  even  forced  to  contend,  that  Ulpan  himself  must  have 
changed  his  mind. 

Since  his  work  was  not  published,  I  believe,  in  his 
life-time,  there  may  be  reason  to  suspect,  that  he  had 
not  completely  settled  his  own  mind  ;  and  he  concludes, 
indeed,  with  referring  the  decision  of-  every  case  on  this 
head  to  that  most  dangerous  and  most  tremendous  pow- 
er,(3)  the  discretion  ofthejudge.(o) 

(o)  "  Ergo  certe  hac  in  re  censentibus  accedo,  vix  quidquam  geneialiiis 
"  definiri  posse — remque  hanc  ad  .irbitrinm  ju<Ufis.  pront  res  est,  referfn- 
"  dam-"'     p.  141. 


25  THE  LAW  OF  BAILMENTS. 

System  of  Thc  trij)le  division  of  neglects  had  also  been  highly 

Dondlur*^  censured  by  some  lawyers  of  reputation.  Zasius  had 
very  justly  remarked,  that  neglects  differed  in  degree, 
but  not  in  species  :  adding,  "  that  he  had  no  objection  to 
"  the  use  of  the  words  levis  and  levissima,  merely  as 
"  terms  of  practice  adopted  in  courts,  for  the  more  easy 
[  26  ]  "  distinction  between  the  different  degrees  of  care  ex- 
*'  acted  in  the  performance  of  different  contracts  :"(p^ 
but  DoNELLUS,  in  opposition  to  his  master  Duaren, 
insisted  that  levis  and  levissima  differed  in  sound  only, 
not  in  sense  ;  and  attempted  to  prove  his  assertion  tri- 
umphantly by  a  regular  syllogism  ;(«7)  the  minor  pro- 
position of  which  is  raised  on  the  figurative  and  inaccu- 
rate manner,  in  which  positives  are  often  used  for  su- 
perlatives, and  conversely,  even  by  the  best  of  the  old 
Roman  lawyers.  True  it  is,  that,  in  the  law  Contractus, 
the  division  appears  to  be  twofold  only,  dolus  and 
CULPA  ;  which  differ  in  species,  when  the  first  means 
actual  fraud  and  malice,  but  in  degree  merely  when  it 
denotes  no  more  than  ^ross  neglect;  and,  in  either  case, 
the  second  branch,  being  capable  of  more  and  less,  may 
be   subdivided  into   ordinary  and  slight;   a  subdivision 

(p)  Zas.  Singul.  Resp.  lib.  i.  cap.  2. 

(q)  "  Quorum  definitiones  eaedem  sunt,  ea  inter  sesunt  eadem— levis  au- 
tera  culpae  et  levissimae  una  et  eadem  definitio  est — utraque  igitur  culpa 
eadem."     Comm.  Jnr.  Civ.  lib.  xvi.  cap.  7. 


(3.)  In  the  language  of  an  eminent  judge.  The  discretion  of  a  judge  is 
the  law  of  tyrants;  it  is  aln-ays  unknown;  it  is  different  in  different 
men;  it  is  casual,  and  depends  upon  constitution,  temper,  and  passion. 
In  the  best  it  is  oftentimes  caprice ;  in  the  worst,  it  is  every  vice,  folly, 
and  passion  to  which  human  nature  is  liable.  Vide  Ld.  Camden's 
Argument  in  the  case  of  Doe  v  Kersey,  Pasch.  5  Geo.  3.  1765.  C.  P, 
Fearne,  Ex.  Devises.  Butler's  ed.  535.  See  also,  Paley's  IMoral  and 
Political  Philosophy,  vol.  2.  p.  243. 


THE  LAW  OF  BAILMENTS.  26 

which  the  law  Si  ut  certo  obviously  requires  :    and  thus 
are  both  laws  perfectly  reconciled. 

We  may  apply  the  same  reasoning,  changing  what 
should  be  changed,  to  the  trijple  division  oi  diligence  :  for, 
when  good  faith  is  considered  as  implying,  at  least,  the 
exertion  of  slight  attention,  the  other  branch.  Care,  is 
subdivisible  into  ordinary  and  extraordinary  ;  which  brings 
us  back  to  the  number  of  degrees  already  established  L  '-''  J 
both  by  the  analysis  and  by  authority . 

Nevertheless,  a  system,  in  one  part  entirely  new,  was  ^^^0™° ^ 
broached  in  the  present  century  by  an  advocate  in  the 
Parliament  of  Paris,  who  may,  probably,  be  now  living, 
and,  possibly,  in  that  professional  station,  to  which  his 
learning  and  acuteness  justly  entitle  him.  I  speak  of 
M.  Le  Brun,  who  published,  not  many  years  ago,  an 
Essay  on  Responsibility  for  Neglect,(r)  which  he  had 
nearly  finished  before  he  had  seen  the  Commentary  of 
Godefyoi,  and,  in  all  probability,  without  ever  being  ac- 
quainted with  the  opinion  of  Donellus. 

This  author  sharply  reproves  the  triple  division  of 
neglects,  and  seems  to  disregard  the  rule  concerning  a 
benefit  arising  to  both^  or  to  one,  of  the  contracting 
parties  j  yet  he  charges  Godefroi  with  a  want  of  due 
clearness  in  his  ideas,  and  with  a  palpable  misinterpre- 
tation of  several  laws.  He  reads  in  his  quidEm  et  dili- 
gentiam  ;  and  that  with  an  air  of  triumph  ;  insinuating, 
that  quid  km  was  only  an  artful  conjecture  of  Cujas  and 
Le  Conte  for  the  purpose  of  establishing  their  system  ; 
and  he  supports  his  own  reading  by  the  authority  of  the 
Basilica  ;  an  authority,  which,  on  another  occasion, 
he  depreciates.  He  derides  the  absurdity  of  permitting 
negligence  in  any  contract,  and  urges,  that  such  permis-  r  .^o  -i 
sion,  as  he  calls  it,  is  against  express  law  :  "  Now,"  says 

(»•)  Essai  sill-  la  Prestation  des  Fautos,  a  Paris,  clicz  Saugrain,  1764. 


28  THC  LAW  OF  BAILMENTS. 

lie,  "  where  a  contract  is  beneficial  to  both  parties,  the 
"  doctors  permit  slight  neghgence,  which,  how  sUght 
"  soever,  is  still  negligence,  and  ought  always  to  be  in- 
"  hibited."  He  warmly  contends  that  the  Roman  laws, 
properly  understood,  admit  only  two  degrees  of  dili- 
gence ;  one,  measured  by  that  which  a  provident  and 
attentive  father  of  a  family  uses  in  his  own  concerns  ; 
another,  by  that  care  which  the  indivio'nat  party,  of 
whom  it  is  required,  is  accustomed  to  take  of  his  own 
possessions  ;  and  he,  very  ingeniously,  substitutes  a  new 
rule  in  the  place  of  that  which  he  rejects  ;  namely,  that 
when  the  things  in  question  are  the  sole  property  of  the 
person  to  whom  they  must  be  restored,  the  holder  of  them 
is  obliged  to  keep  them  with  the  frst  degree  of  diligence  ; 
whence  he  decides,  that  a  borroiver  and  a  hirer  are  re- 
sponsible for  precisely  the  same  neglect ;  that  a  vendor^ 
who  retains  for  a  time  the  custody  of  the  goods  sold,  is 
under  the  same  obligation,  in  respect  of  care,  with  a 
man  who  undertakes  to  manage  the  affairs  of  another, 
either  ivithout  his  request  as  a  negotiorum  gestor,  or  with 
it,  as  a  mandatary  ;  ''  but,"  says  he,  "  when  the  things 
**  are  the  JOINT  property  of  the  parties  contracting,  no 
"  higher  diligence  can  be  required  than  the  second  de- 
*•  gree,  or  that  which  the  acting  party  commonly  uses 
"  in  his  own  affairs;  and  it  is  sufficient,  if  he  keep  them 
[  29  ]  "  (ts  he  keeps  his  oivn.^^  This  he  conceives  to  be  the 
distinction  between  the  eight  contracts,  which  precede, 
and  the  two,  which  follow,  the  words  in  his  quidem  et 
diligentiam. 

Throughout  his  work  he  displays  no  small  sagacity 
and  erudition,  but  speaks  with  too  much  confidence  of 
^is  own  decisions,  and  with  too  much  asperity  or  con- 
tempt of  all  other  interpreters  from  Bartolus  to  ViN- 

MUS. 


THE  LAW  OF  BAILMENTS.  29 

At  the  time  when  this  author  wrote,  the  learned  M. 
PoTHiER  was  composing  some  of  his  admirable  Trea2!zse5 
on  all  the  different  species  of  express  or  implied  con- 
tracts ;  and  here  I  seize,  with  pleasure,  an  opportunity 
of  recommending  those  treatises  to  the  English  lawyer, 
exhorting  him  to  read  them  again  and  again  ;  for,  if  his 
great  master  Littleton  has  given  him,  as  it  must  be 
presumed,  a  taste  for  luminous  method,  apposite  exam- 
ples, and  a  clear  manly  style,  in  which  nothing  is  redun- 
dant, nothing  deficient,  he  will  surely  be  delighted  with 
works,  in  which  all  those  advantages  are  combined,  and 
the  greatest  portion  of  which  is  law  at  Westminster  ae 
well  as  at  Orleans  :(s)  for  my  own  part,  I  am  so  charm- 
ed with  them,  that,  if  my  undissembled  fondness  for  the 
study  of  jurisprudence  were  never  to  produce  any  greater 
benefit  to  the  public,  than  barely  the  introduction  of  [  30  ] 
PoTHiER  to  the  acquaintance  of  my  countrymen,  I  should 
think  that  I  had  in  some  measure  discharged  the  debt 
which  every  man,  according  to  Lord  CoKE,(4)  owes  to  his 
j^rofession. 

To  this  venerable  professor  and  judge,  for  he  had  Vindication  of 
sustained  both  characters  with  deserved  apjjlause,  Le  by^Pothier.^*" 
Brun  sent  a  copy  of  his  little  work  ;   and  M.  Pothier 
honoured  it  with  a  short,  but  complete,  answer  in  the 

(5)  Oeuvres  de  M.  Pothier,  a  Paris,  chez  Debure— 28  volumes  in  duodo- 
cimo,  or  6  in  quarto.     The  illustrious  author  died  in  1772.(3) 


(3)  See  the  treatise  on  the  law  of  obligations  or  contracts,  by  M. 
Pothier,  translated  from  the  French,  with  an  introduction,  appendix, 
and  notes,  illustrative  of  the  English  law  on  the  subject,  to  which  the 
eloge  of  M.  Pothier,  pronounced  upon  his  decease,  in  the  University 
of  Orleans,  is  prefixed,  by  the  late  Sir  William  Darid  Evans,  recorder 
of  Bombay. 

(4)  8th  Rep.  pref.  p.  34. 


30  THE   LAW  OF   BAILMENTS. 

form  ot"  a  General  Observation  on  his  Treatises  ;{t)  de- 
claring, at  the  same  time,  that  he  would  not  enter  into  a 
literary  contest,  and  apologizing  for  his  fixed  adherence 
to  the  ancient  system,  which  he  politely  ascribes  to  the 
natural  bins  of  a7i  old  man  in  favour  of  opinions  formerly 
imbibed.  This  is  the  substance  of  his  answer  :  "  That 
"  he  can  discover  no  kind  of  absurdity  in  the  usual  divi- 
"  sion  of  neglect  and  diligence,  nor  in  the  rule,  by  which 
"  different  degrees  of  them  are  applied  to  different  con- 
"  tracts  ;  that,  to  speak  with  strict  propriety,  negligence 
"  is  not  permitted  in  any  contract,  but  a  less  rigorous 
"  construction  prevails  in  some  than  in  others  ;  that  a 
*'  hirer,  for  instance,  is  not  considered  as  negligent,  when 
"  he  takes  the  same  care  of  the  goods  hired,  which  the 
"  generality  of  mankind  take  of  their  own  ;  that  the 
"  letter  to  hire,  who  has  his  reward,  must  be  presumed  to 
[  31  ]  "  have  demanded  at  fust  no  higher  degree  of  dihgence, 
*'  and  cannot  justly  complain  of  that  inattention,  which  in 
"  another  case  might  have  been  culpable  ;  for  a  lender, 
"  who  has  no  reward,  may  fairly  exact  from  the  bor- 
"  rower  that  extraordinary  degree  of  care,  which  a  very 
"  attentive  person  of  his  age  and  quality  would  certainly 
"  have  taken  ;  that  the  diligence  which  the  individual 
'■'party  cammonly  mcs  in  his  own  affairs,  cannot  properly 
"be  the  object  of  judicial  inquiry;  for  every  trustee, 
"  administrator,  partner,  or  co-proprietor,  must  be^re- 
"  sumed  by  the  court,  auditors,  or  commissioners,  before 
"  whom  an  account  is  taken,  or  a  distribution  or  parti- 
"  tion  made,  to  use  in  their  own  concerns  such  diligence 
"  as  is  commonly  used  by  all  prudent  men;  that  it  is  a 
"  violation  Osgood  faith  for  any  man  to  take  less  care  of 
"  another's  property,  which  has  been  intrusted  to  him, 

(t)  It  ig  printed  apart,  in  fourteen  pages,  at  the  end  of  his  Treatise  on  the 
Marria  ^-contract. 


THE  LAW  OF  BAILMENTS.  3.I 

*'  than  of  his  oivn ;  that,  consequently,  the  author  of 
"  the  new  system  demands  no  more  of  a  partner  or  a 
*^  joint-owner  than  of  a  depositary,  who  is  bound  to  keep 
'*  the  goods  deposited  as  he  keeps  his  own  ;  which  is  di. 
*'  rectly  repugnant  to  the  indisputable  and  undisputed 
*'  sense  of  the  law  Contractus^ 

I  cannot  learn  whether  M.  Le  Brun  ever  published 
a  reply,  but  am  inclined  to  believe  that  his  system  has 
gained  very  little  ground  in  France,  and  that  the  old  in- 
terpretation continues  universally  admitted  on  the  Conti-      [  32  ] 
nent  both  by  theorists  and  practisers. 

Nothing  material  can  be  added  to  Pothier's  argu- 
ment, which,  in  my  humble  opinion,  is  unanswerable  ; 
but  it  may  not  be  wholly  useless  to  set  down  a  few  gene- 
ral remarks  on  the  controversy :  particular  observations 
might  be  multiplied  without  end. 

The  only  essential  difference  between  the  systems  of  obsesvations 
GoDEFROi  and  Le  Brun  relates  to  the  two  contracts,  **"  ^'  ^'^"*'' 
which  follow  the  much-disputed  clause;  for  the  Swiss 
lawyer  makes  the  partner  and  co-proprietor  answerable 
for  ordinary  neglect,  and  the  French  advocate  demands 
no  more  from  them  than  common  honesty  :  now,  in  this 
respect,  the  error  of  the  second  system  has  been  proved 
to  demonstration  ;  and  the  author  of  it  himself  confesses 
ingenuously,  that  the  other  part  of  it  fails  in  the  article  of 
Marriage-portions,  {u 

In  regard  to  the  division  of  neglect  and  care  into  three 
degrees  or  two,  the  dispute  appears  to  be  merely  verbal ; 
yet,  even  on  this  head,  Le  Brun  seems  to  be  self-con- 
futed :  he  begins  with  engaging  to  prove  "  that  only  tvfo 
"  degrees  of  fault  are  distinguished  by  the  laws  of  Rome, ''^ 
and  ends  with  drawing  a  conclusion,  that  they  acknow- 

(h)  See  p    71.  note — and  p.  126. 

5 


32  THE  LAW  OF  BAIL:MENTS. 

ledge  but  07ie  degree  :  now,  though  this  might  be  only  a 
shp,  yet  the  whole  tenor  of  his  book  establishes  tivo 
L  ''^  J  modes  of  diligence,  the  omissions  of  which  are  as  many 
neglects  ;  exclusively  of  ^ross  neglect,  which  he  likewise 
admits,  for  the  culpa  levissima  only  is  that  which  he"  re- 
pudiates. It  is  true,  that  he  gives  no  epithet  or  name  to 
the  omission  of  the  second  mode  of  care  ;  and,  had  he 
searched  for  an  epithet,  he  could  have  found  no  other 
than  gross  ;  which  would  have  demonstrated  the  weak- 
ness of  his  whole  system,  (u) 

The  disquisition  amounts,  in  fact,  to  this  ;  from  the 
barrenness  or  poverty,  as  Lucretius  (5)  calls  it,  of  the 
Latin  language,  the  single  word  culpa  includes,  as  a 
generic  term,  various  degrees  or  shades  of  faulty  which 
are  sometimes  distinguished  by  epithets,  and  sometimes 
left  without  any  distinction  ;  but  the  Greek,  which  is  rich 
and  flexible,  has  a  term  expressive  of  almost  every  shade, 
and  the  translators  of  the  law  Contractus  actually  use  the 
words  pwiufiia  and  a-ihskha^  which  are  by  no  means  sy- 
nonymous, the  former  implying  a  certain  easiness  of  mind, 
or  remissness  of  attention,  while  the  second  imports  a  high- 
er and  more  culpable  degree  of  negligence  (w).  This  ob- 
servation, indeed,  seems  to  favour  the  system  of  Gode- 
froi ;  but  I  lay  no  great  stress  on  the  mere  words  of  the 
translation,  as  I  cannot  persuade  myself,  that  the  Greek 

(«)  See  pages  32.  73.  74.  149. 

(uj)  Basilica,  2,  3.  23.  See  Demosth.  3  Phil.  Reiske's  edit.  I.  112.  3.  For 
levissima  culpa,  which  occurs  but  once  in  the  whole  body  of  Roman  law, 
pqdvfiia  seems  the  proper  word  in  Greek  ;  and  it  is  actually  so  used  in  the 
Basilica  60.  3.  5.  where  mention  is  made  of  the  Aquilian  law,  in  qua,  says 
Ulpian,  et  livissima  culpa  venit.     D.  9.  2.  44. 

(5)  De  Rer.  Nat.  lib.  i.  line  140. 


THE  LAW  OF  BAILMENTS.  34 

jurists  under  Basilius  and  Leo  were  perfectly  acquaint- 
ed with  the  niceties  and  genuine  purity  of  their  language  ; 
and  there  are  invincible  reasons,  as,  I  hope,  it  has  been 
proved,  for  rejecting  all  systems  but  that  which  PoTHlER 
has  recommended  and  illustrated. 

I  come  now  to  the  laws  of  our  own  country,  in  which  English  law. 
the  same  distinctions  and  the  same  rules,  notwithstand- 
ing a  few  clashing  authorities,  will  be  found  to  prevail ; 
and  here  I  might  proceed  chronologically,  from  the  old- 
est Year-book,  or  Treatise,  to  the  latest  adjudged  Case  ; 
but,  as  there  would  be  a  most  unpleasing  dryness  in  that 
method,  I  think  it  better  to  examine  separately  every  dis- 
tinct species, (6)  observing,  at  the  same  time,  under  each 
head,  a  kind  of  historical  order.  It  must  have  occurred 
to  the  reader,  that  I  might  easily  have  taken  a  wider 
field,  and  have  extended  my  inquiry  to  every  possible 
case,  in  which  a  man  possesses  for  a  time  the  goods  of 
another;  but  I  chose  to  confine  myself  within  certain  li- 
mits, lest,  by  grasping  at  too  vast  a  subject,  I  should  at 
last  be  compelled,  as  it  frequently  happens,  by  accident 
or  want  of  leisure,  to  leave  the  whole  work  unfinished  : 
it  will  be  sufficient  to  remark,  that  the  rules  are  in  gen-  f  35  1 
eral  the  same,  by  whatever  means  the  goods  are  legally 
in  the  hands  of  the  possessor,  whether  by  delivery  from 
the  owner,  which  is  a  proper  bailment,  or  from  any  other 
person,  by  finding, (x)  or  in  consequence  of  some  distinct 
contract. 

Sir  John  Holt,  whom  every  Englishman  should  men-  j^^^^  Holt's 
tion  with  respect,  and  from  whom  no  English  lawyer  fi'^'sion  of 

^  b  J        Bailments. 

(x)  Doct.  and  Stud.  dial.  2.  ch.  38.     Lord  Raym.  S09.  917.     See  Ow. 
141.     1  Leon.  224.     1  Cro.  219.  Mulgrave  and  Ogden. 


(6)  See  Gibbon's  Rom.  Emp.  vol.  8.  p.  SI.  85.  87. 


35  THE  LAW  OF  BAILMENTS. 

should  venture  to  dissent,  without  extreme  diffidence^ 
has  taken  a  comprehensive  view  of  this  whole  subject  in 
his  judgment  on  a  celebrated  case, (7)  which  shall  soon 
be  citied  at  length ;  but,  highly  as  I  venerate  his  deep 
learning  and  singular  sagacity,  I  shall  find  myself  con- 
strained, in  some  few  instances,  to  differ  from  him,  and 
shall  be  presumptuous  enough  to  offer  a  correction  or  two 
in  part  of  the  doctrine,  which  he  propounds  in  the  course 
of  his  argument. (y) 

His  division  of  bailments  into  sir  sorts  appears,  in  the 
first  place,  a  little  inaccurate  ;  for,  in  truth,  his. ffth  sort 
is  no  more  than  a  branch  of  his  thirty  and  he  might, 
with  equal  reason,  have  added  a  seventh,  since  the  fifth 
is  capable  of  another  subdivision.  I  acknowledge, 
therefore,  but  Jive  species  of  bailment,  which  I  shall 
now  enumerate  and  define,  with  all  the  Latin  names, 
P  Of?  -I  one  or  two  of  which  Lord  Holt  has  omitted.  1.  Depo- 
New  division  SITUM,  which  is  a  naked  bailment,  without  reward,  of 
anddefini-  ^-ooj.,  to  be  kept  for  the  bailor.  2.  Mandatum,  or  cow- 
7nmio7f,[B]  when  the  mandatary  undertakes,  without  re- 
compence,  to  do  some  act  about  the  things  bailed,  or 
simply  to  carry  them ;  and  hence  Sir  Henry  Finch  di- 
vides bailment  into  two  sorts,  to  keep,  and  to  employ. (z) 
3.  CoMMODATUM,  or  loun  for  wse;[c]  when  goods  are 
bailed,  without  pay,  to  be  used  for  a  certain  time  by  the 

(y)  Lord  Raym.  912.  (s)  Law,  b.  2.  ch.  IS. 


(7)  Coggsv.  Bernard,  2  Lord  Raym.  909.     See  post,  p.  58.  and  the 
case  at  full  in  the  Appendix. 

[(b)  This  IS  Lord  Holt's  6th  division.  Lord  Ray.  913.  Pow.   on  Coo. 
254.     Bui.  N.  P.  73.] 

[(c)  A  distinction  must  be  observed  between  this  kind  of  bailment. 


THE  LAW  OF  BAILMENTS.  36 

bailee.  4.  Pignori  acceptum  ;  when  a  thing  is  bailed 
by  a  debtor  to  his  creditor  in  pledge,  or  as  a  security  for 
the  debt.  5.  Locatum,  or  hiring,  which  is  always  for 
a  reward ;  and  this  bailment  is  either,  1.  Locatio  rei, 
by  which  the  hirer  gains  the  temporary  use  of  the  thing  ; 
or,  2.  Locatio  operis  facienda,  when  work  and  labour,  or 
care  and  pains,  are  to  be  performed  or  bestowed  on  the 
thing  delivered ;  or,  3.  Locatio  operis  mercium  vehenda- 
rum,  when  goods  are  bailed  for  the  purpose  of  being 
carried  from  place  to  place,  either  to  a  public  carrier,  or 
to  di  private  person. (8) 

1.  The  most  ancient  case  that  I  can  find  in  our  books  Lawofdepo- 
on  the  doctrine  of  Deposits  (there  were  others,  indeed, 
a  few  years  earlier,  which  turned  on  points  of  pleading,) 
was  adjudged  in  the  eighth  of  Edward  II.  and  is  abridg- 
ed by  Fitzherbert.{a)     It  may  be  called  Bon  ion's  case,      [  37  ] 
from  the  name  of  the  plaintiff,  and  was,  in  substance,    """'"  * 
this  : — An  action  of  detinue  was  brought  for  seals,  plate, 
and  jewels,  and  the  defendant  pleaded,   "  that  the  plain- 
"  tiff  had  bailed  to  him  a  chest  to  be  kept,  which  chest 
"  was  locked;  that  the  bailor  himself  took  away  the  key, 
"  tvithout  informing  the  bailee  of  the  contents  ;  that  rob- 

[a)  Mayn.  Edw.  II.  275.     Fitz.  Abr.  tit.    Detinue,  59. 


and  what  is  called  mutuum:  this  last  is  a  loan,  and  generally  gratuitous  ; 
bat  it  is  for  consumption,  to  be  repaid  in  property  of  the  same  kind, 
but  not  in  the  specific  property  :  this  is  not  strictly  a  bailment,  as  the 
absolute  property  is  transferred  to  the  borrower  immediately  on  delive- 
ry, and  if  a  loss  happen,  in  any  way,  he  must  bear  it.  Doct,  and  Stud. 
222.] 

(8)  This  division  and  classification  of  the  different  species  of  bail- 
ment will  be  considered  by  the  student  of  the  English  law,  as  prefera- 
ble both  to  Lord  Holt's  Analysis  and  the  Order  of  the  Itnperial  Insti- 
tutes.    See  Vinnius  inlnstit.  lib.  3.  tit-  15. 


38  THE  LAW  OF  BAILMENTS. 

"  bcrs  came  in  the  night,  broke  open  the  defendant'' $ 
*'  chamber,  and  carried  off  the  chest  into  the  fields,  where 
"  they  forced  the  lock,  and  took  out  the  contents  ;  that 
"  the  defendant  was  robbed  at  the  same  time  of  his  own 
"  goods."  The  plaintiff  replied,  "  that  the  jewels  were 
"  delivered,  in  a  chest  not  locked,  to  be  restored  at  the 
"  pleasure  of  the  bailor;"  and  on  this,  it  is  said,  issue 
was  joined* 

Upon  this  case  Lord  Holt  observes,  "  that  he  cannot 
"  see,  why  the  bailee  should  not  be  charged  with  goods 
"  in  a  chest,  as  well  as  with  goods  out  ofo.  chest ;  for, 
"  says  he,  the  bailee  has  as  little  power  over  them,  as  to 
*'  any  benefit  that  he  might  have  from  them,  and  as  great 
"  power  to  defend  them  in  one  case  as  in  the  other. "(6) 
The  very  learned  judge  was  dissatisfied,  we  see,  with 
Sir  Edivard  Coke's  reason,  *'  that,  when  the  jewels  were 
"  locked  up  in  a  chest,  the  bailee  was  not,  in  fact,  trust- 
*'  ed  with  them. "(c)  Now,  there  was  a  diversity  of  opi- 
nion upon  this  very  point,  among  the  greatest  lawyers  of 
Rome;  for  "  it  was  a  question,  whether,  if  a  box  sealed 
"  up  had  been  deposited,  the  box  only  should  be  demand- 
"  ed  in  an  action,  or  the  clothes  which  it  contained 
"  should  also  be  specified;  and  Trebatius  insists,  that 
"  the  box  only,  not  the  particular  contents  of  it,  must  be 
•'  sued  for  ;  unless  the  things  were  previously  shown, 
"  and  then  deposited:  but  Labeo  asserts,  that  he  who 
"deposits  the  box,  deposits  the  contents  of  it;  and 
*'  ought,  therefore,  to  demand  the  clothes  themselves. 
"  What,  then,  if  the  depositary  was  ignorant  of  the  con- 
•'  tents  ?  It  seems  to  make  no  great  difference,  since  he 
"  took  the  charge  upon  himself;  and  I  am  of  opinion, 
"  says  Ulpian,  that,  although  the  box  was  sealed  up,  yet 

(h)  Lord  Raym.  914.         (c)  4  Rep.  84. 


THE  LAW  OF  BAILMENTS.  38 

"  an  action  may  be  brought  for  what  it  contained." (f/) 
This  relates  chiefly  to  the  form  of  the  libel ;  but  surely 
cases  may  be  put,  in  which  the  difference  may  be  very 
material  as  to  the  defence.{9)  Diamonds,  gold,  and  pre- 
cious trinkets,  ought,  from  their  nature,  to  be  kept  with 
peculiar  care  under  lock  and  key ;  it  would,  therefore, 
be  gross  negligence  in  a  depositary  to  leave  such  a  depo- 
sit in  an  open  antichamber,  and  ordinary  neglect,  at  least, 
to  let  them  remain  on  his  table,  where  they  might  possi- 
bly tempt  his  servants ;  but  no  man  can  proportion  his 
care  to  the  nature  of  things,  without  knowing  them  ;  per- 
haps, therefore,  it  would  be  no  more  than  slight  neglect,  [  39  ] 
to  leave  out  of  a  drawer  a  box  or  casket,  which  was  nei- 
ther known,  nor  could  justly  be  suspected,  to  contain  dia- 
monds ;  and  Domat.(I)  who  prefers  the  opinion  of  Tre- 
batius,  decides,  "that,  in  such  a  case,  the  depositary  ' 

♦'  would  only  be  obliged  to  restore  the  casket,  as  it  was 

(<£)  D.  16.  3. 1.  41. 


(9)  Negligence  is  a  relative  term,  depending  upon  the  known  value 
of  the  article,  and  the  means  of  security  possessed  by  the  bailee;  and 
both  these  circumstances  are  material  to  be  considered,  in  estimating 
the  want  of  care  with  reference  to  a  particular  article.  A  stage-coach- 
man, therefore,  who  should  deposit  a  parcel  containing  bank-notes'and 
bills  to  a  large  amount,  in  the  boot  of  his  coach,  instead  of  placing  it 
under  the  seat  in  the  inside,  or  other  place  used  for  valuable  articles, 
not  having  any  knowledge  of  its  contents,  but  entitled,  from  the  effect 
of  a  general  notice,  to  consider  it  as  a  parcel  containing  articles  of  or- 
dinary value,  would  not,  although  there  might  be  evidence,  in  other 
respects,  of  particular  neglect,  be  guilty  of  gross  negligence,  so  as  to 
render  him  responsible  for  the  loss,  notwithstanding  he  was  protected 
by  a  general  notice.  Batson,  v.  Donovan,  4  Barn,  and  Aid.  21.  See 
the  observation  of  Bailey,  J.  in  Slcat  v.  Fagg,  5  Barn,  and  Aid.  348. 
Bodenham  v-  Bennet,  4  Price,  31. 

(1)  Civ.  Law,  lib.  l.tit.  7.  {  1. 


39  '  THE  LAW  OF  BAILMENTS. 

"  delivered,  without  being  responsible  for  the  contents 
"  of  it."  I  confess,  however,  that,  anxiously  as  I  wish 
on  all  occasions  to  see  authorities  respected,  and  judg- 
ments holden  sacred,  Bonion's  case  appears  to  me 
wholly  incomprehensible ;  for  the  defendant,  instead  of 
having  been  grossly  negligent  (which  alone  could  have 
exposed  him  to  an  action,)  seems  to  have  used  at  least 
ordinary  diligence  ;  and,  after  all,  the  loss  was  occasion- 
ed by  a  burglary,  for  which  no  bailee  can  be  responsible, 
without  a  very  special  undertaking.  The  plea,  there- 
fore, in  this  case,  was  good,  and  the  replication  idle  ;  nor 
could  I  ever  help  suspecting  a  mistake  in  the  last  words, 
alii  quod  non;  although  Richard  de  Winchedon,  or  who- 
ever was  the  compiler  of  the  table  to  this  year-book, 
makes  a  distinction,  that  "if  jewels  be  bailed  to  me, 
"  and  I  put  them  into  a  casket,  and  thieves  rob  me  of  them 
*'  in  the  night  time,  I  am  answerable  ;  not,  if  they  be  de- 
livered to  me  in  a  chest  sealed  ?Ap;"  wkich  could  never 
have  been  law  ;  for  the  next  oldest  case,  in  the  book  of 
Assise,  contains  the  opinion  of  Chief  Justice  Thorpe, 
that  "  a  general  bailee  to  Jceep  is  not  responsible,  if  the 
["  40  ]  '^  goods  be  stolen,  without  his  gross  neglect  f  [e)  and  it  ap- 
pears, indeed,  from  Fitzherbert,  that  the  party  was  driv- 
en to  this  issue,  "  whether  the  goods  were  taken  away 
*'  by  robbers^ 
Mosaic  Laws.  By  the  Mosaic  institutions,  "if  a  man  delivered  to  his 
"  neighbour  money  or  stuff  to  keep,  and  it  was  stolen 
"  out  of  his  house,  and  the  thief  could  not  be  found,  the 
"  master  of  the  house  was  to  be  brought  before  the  judge, 
"  and  to  be  discharged,  if  he  could  swear  that  he  had 
"  not  put  his  hand  unto  his  neighbour's  goods,"(/)  or,  as 

(e)  29  Ass.  28.  Bro.  Abr.  tit  Bailment,  pi.  7. 
(/)  Exod.  xxii.  7,  C 


THE  LAW  OF  BAILMENTS  4© 

the  Roman  author  of  the  Lex  Dei  translates  it,  Nihil  sc 
nequiter gcssisse  :{g)  but  a  distinction  seems  to  have  been 
made  between  a  steaUng  by  day  and  a  stealing  by 
*'  night;{h)  and  "if  cattle  were  bailed  and  stolen,  (by  cZay, 
"  I  presume,)  the  person  who  had  the  care  of  them  was 
"  bound  to  make  restitution  to  the  owner  ;''(i)  for  which 
the  reason  seems  to  be,  that  when  cattle  are  delivered 
to  be  Jcept,  the  bailee  is  rather  a  mandatary  than  a  deposit- 
ary, and  is,  consequently,  obliged  to  use  a  degree  of  dili- 
gence adequate  to  the  charge :  now,  sheep  can  hardly  be 
stolen  in  the  day-time  without  some  neglect  of  the  shep- 
herd ;  and  we  find  that  when  Jacob,  who  was  for  a  long 
time  at  least,  a  bailee  of  a  different  sort,  as  he  had  a  re-  [  41  ] 
ivard,  lost  any  of  the  beasts  intrusted  to  his  care,  Laban 
made  him  answer  for  them,  "whether  stolen  by  "day 
or  stolen  by  night. "(^) 

Notwithstanding  the  high  antiquity,  as  well  as  the 
manifest  good  sense,  of  the  rule,  a  contrary  doctrine  was 
advanced  by  Sir  Edward  Coke  in  his  Reports,  and  af- 
terwards deliberately  inserted  in  his  Commentary  on  Lit- 
tleton, the  great  result  of  all  his  experience  and  learn- 
ing ;  namely,  "  that  a  depositary  is  responsible,  if  the 
"  goods  be  stolen  from  him,  unless  he  accept  them  spe- 
*'  cially  to  keep  as  his  own,''^  whence  he  advises  all  de- 
positaries to  make  such  a  special  acceptance. (/)  This 
opinion,  so  repugnant  to  natural  reason  and  the  laws  of 
all  other  nations,  he  grounded  partly  on  some  broken 
cases  in  the  year-books,  mere  conversations  on  the  bench, 
or  loose  arguments  at  the  bar ;  and  partly  on  South- 
cote's  case,  which  he  has  reported,  and  which  by  no 

(g)  Lib.  10.  De  Deposito.  This  book  is  priuted  in  the  same  volume 
with  the  Theodosian  Code,  Paris,  1586. 

(A)  Gen.  xsxi.  39-         (i)  Exod.  xxii.  13.         (fc)  Gen.  xxxi  39. 
fi)  4  Rep.  83.  b.     1  Insf.  89-  a.  b. 

6' 


ca&e 


41  THE  LAW  OF  BAILMENTS. 

means  warrants  his  deduction  from  it.  As  I  liumbly 
conceive  that  case  to  be  law,  though  the  doctrine  of  the 
learned  reporter  cannot  in  all  points  be  maintained, (2)  I 
shall  offer  a  few  remarks  on  the  pleadings  in  tlie  cause, 
and  the  judgment  given  on  them. 
Southcote's  SoUTHCOTE  declared  in  detinue,  that  he  had  delivered 

r  42  1      goods  to  Bennet,  to  be  hy  him  SAFELY  kept :  the  defend- 
ant confessed  such  delivery,  but  pleaded  in  bar,  that  a 
certain  person  stole  them  out  of  his  possession ;  the 
piamtilf  replied,  protesting  that  he  had  not  been  robbed, 
that  the  person  named  in  the  plea  was  a  servant  of  the 
defendant,  and  demanded  judgment ;  which,  on  a  gene- 
*•  ral  demurrer  to  the  replication,  he  obtained.     The  rea- 
"  son  of  the  judgment,  says  Lord  Coke,  was,  because  the 
"  plaintiff  had  delivered  the  goods  to  be  safely  kept, 
"  and  the  defendant  had  taken  the  charge  of  them  upon 
*'  himself,  by  accepting  them  on  such  a  delivery."     Had 
the  reporter  stopped  here,  I  do  not  see  what  possible  ob- 
jection could  have  been  made  ;  but  his  exuberant  erudi- 
tion boiled  over,  and  produced  the  frothy  conceit,  which 
has  occasioned  so  many  reflections  on  the  case  itself ; 
namely,  "  that  io  keep  and  to  keep  safely  are  one  and 
the  same  thing ;"  a  notion, (3)  which  was  denied  to  be 
law  by  the  whole  court   in   the   time  of  Chief  Justice 
HoU.(m) 

(m)  Ld.  Raym.  911   margin. 


(2)  See  2  Ld.  Ray.  911.  and  note.(c)  912—914. 

(3)  In  a  case  similar  to  the  above,  wliere  the  plaintiff  declared  in  de- 
tinue, that  he  had  delivered  certain  antiques  to  the  defendant  to  be  by 
him  safely  kept ;  tlie  defundant  pleaded  that  the  articles  were  delivered 
to  him  to  lake  care  of  as  his  own,  and  to  be  shown  to  persons  to  ascer- 
tain their  value,  and  that  the  defendant  having  them  in  his  pocket  for 


THE  LAW  OF  BAILMENTS. 

It  is  far  from  my  intent  to  speak  in  derogation  of  the 
great  commentator  on  Littleton;  since  it  may  truly  be 
asserted  of  him,  as  Qiiintilian  said  of  Cicero,  that  an 
admiration  of  his  ivorJcs  is  a  sure  marie  of  some  proficiency 
in  the  study  of  the  law;{^)  but  it  must  be  allowed,  that 
his  profuse  learning  often  ran  wild,  and  that  he  has  in- 
jured many  a  good  case  by  the  vanity  of  thinking  to  im- 
prove them. 

The  pleader,  who  drew  the  replication  in  Southcote's 
case,  must  have  entertained  an  idea,  that  the  blame  was 
greater,  if  a  servant  of  the  depositary  stole  the  goods, 
than  if  a  mere  strange^  had  purloined  them ;  since  the 
defendant  ought  to  have  been  more  on  his  guard  against 
a  person  who  had  so  many  opportunities  of  stealing ;  and 
it  was  his  own  fault,  if  he  gave  those  opportunities  to  a 
man,  of  whose  honesty  he  was  not  morally  certain  :  the 
court,  we  find,  rejected  this  distinction,  and  also  held 
the  replication  informal ;  but  agreed,  that  no  advantage 
could  be  taken  on  a  ^ejiemZ  demurrer  of  such  informality, 
and  gave  judgment  on  the  substantial  badness  of  the 


42 


[43  1 


that  purpose,  they  were  stolen  from  him,  without  his  default,  by  some 
person  unknown.  Upfln  demurrer  to  the  plaintiff's  replication,  which 
put  in  issue  the  terms  of  the  delivery,  the  court  recognized  the  above 
distinction  between  "  to  keep  and  to  keep  safely,"  and  gave  judgment 
for  the  plaintiff.  Willis,  C.  J.,  in  delivering  the  judgment  of  the  court, 
observed,  that,  according  to  Southcote's  case,  and  the  case  of  Coggs  v. 
Bernard,  and  several  other  cases,  if  the  goods  were  delivered  to  be  kept 
safely,  though  the  defendant  had  been  robbed  of  them,  detinue  will  lie 
against  him  ;  for  he  must  take  his  remedy  against  the  thief,  or  the  hun- 
dred, as  he  can.  But  if  the  goods  were  delivered  to  the  defendant  to 
take  care  of  them  as  his  own  proper  goods,  if  he  be  robbed  of  them,  this 
is  a  good  plea.    Kettle  v.  Bromsali.    Willes's  Rep.  121. 


(1)  "  Ille  se  pr  ofecisse  sciat,  cui  Cicero  valde  placebit."  Inst.  Orat- 
lib.  JO.  c.  1.  §6. 


43  THE  LAW  OF  BAILMENTS. 

plca.(7i)  If  the  plaintifF,  instead  of  replying,  had  demur- 
red to  the  plea  in  bar,  he  might  have  insisted  in  argument, 
with  reason  and  law  on  his  side,  "that,  although  a  ge- 
"  neral  bailee  to  keep  be  responsible  for  gross  neglect 
"  only,  yet  Bonnet  had,  by  a  special  acceptance,  made 
*'  himself  answerable  for  ordinary  neglect  at  least;  that 
"  it  was  ordinary  neglect  to  let  the  goods  be  stolen  out  of 
'*  his  possession,  and  he  had  not  averred  that  they  were 
'.'  stolen  loithont  his  default ;  that  he  ought  to  have  put 
"them  into  a  sa/e  place,  according  to  his  undertaking, 
*'  and  have  kept  the  key  of  it  himself;  that  the  special 
"  bailee  was  reduced  to  the  class  of  a  conductor  operis,  or 
"  a  workman  for  hire  ;  and  that  a  tailor,  to  whom  his 
I  44  J  "employer  has  delivered  lace  for  a  suit  of  clothes,  is 
"bound,  if  the  lace  be  stolen,  to  restore  the  value  of 
"  it."(o)  This  reasoning  would  not  have  been  just,  if 
the  bailee  had  pleaded,  as  in  Bonion's  case,  that  he  had 
been  robbed  by  violence,  for  no  degree  of  care  can,  in  ge- 
neral, prevent  an  open  robbery  :  impetus  pradonum,  says 
TJlpian,  (i  nullo prcEstantur. 

Mr.  Justice  Powell,  speaking  of  Southcote^s  case, 
which  he  denies  to  be  law,  admits,  that  "if  a  man  does 
"  undertake  specially  to  keep  goods  safely,  that  is  a 
"  warranty,  and  will  oblige  the  bailee  *to  keep  them  safe- 

(n)  1  Cro.  815. 

(o)  "  Alia  est  furti  ratio :  id  enim  non  casui,  sed  Icvi  culpae,  ferme 
ascribitur."  Gothofr.  Coram,  in  L  Contractus,  p.  145.  See  D.  17-  2.  52* 
3.,  "  where,"  says  the  annotator,  "  AdversOs  latrones  pariim  prodest  cus 
todia  :  adversus  furem  prodesse  potest  si  quis  advigilet."  See  also  Potli. 
Contrat  de  Louage,  n.  429.  and  Contrat  de  Pret  &  usage,  n.  53-  So,  by 
Justice  Cottesmore,"  Si  jeo  grante  byens  a  un  home  a  garder  a  men  oeps, 
si  les  byens  per  son  mesgarde  sont  embles,  il  sera  charge  a  moy  de  mesmes 
les  byens,  mez  s'il  soil  robbc  de  mesmes  les  byens.  il  st  excusable  per  le 
ley.'     10  Hen.  VL  21   (5.) 


(5)  Vide  Finncane  v.  Small,  I  Esp.  N.  P.  C.  315.  post. 


THE  LAW  OF  BAILMENTS. 

*'  ly  againsit  perils,  where  he  has  a  remedy  over,  but  not 
*'  against  those  where  he  has  no  remedy  over."  (p)  One 
is  unwiHing  to  sup[)ose,  that  this  learned  judge  had  not 
read  Lord  Coke's  report  with  attention;  yet  the  case 
which  he  puts  is  precisely  that  which  he  opposes,  for 
Bcnnet  did  undertake  "  to  keep  the  goods  safely;"  and, 
with  submission,  the  degree  of  care  demanded,  not  the  re- 
medy over,  is  the  true  measure  of  the  obligation ;  for  the 
bailee  might  have  his  appeal  of  robbery,  yet  he  is  not  bound 
to  keep  the  goods  against  robbers,  without  a  most  express 
agreement. (5-)  This,  I  apprehend,  is  all  that  was  mean- 
ed  by  St.  German,  when  he  says,  "that,  if  a  man  have 
''nothing  for  keeping  the  goods  bailed,  and  promise,  at 
"  the  time  of  the  delivery,  to  restore  them  safe  at  his  pe- 
*'  ril,  he  is  not  responsible  for  mere  casualties  ;"(r)  but  the 
"  rule  extracted  from  this  passage,  that  a  special  accept- 
*'  ance  to  keep  safely  will  not  charge  the  bailee  against 
"the  acts  of  tvrong-doers,'\s)  to  which  purport  Hobart 
also  and  Croke  are  cited,  is  too  general,  and  must  be 
confined  to  acts  of  violence. 

I  cannot  leave  this  point  without  remarking,  that  a 
tenant  at  ivill,  whose  interest,  when  he  has  it  rent-free, 
the  Romans  called  precarium,  stands  in  a  situation  ex- 
actly parallel  to  that  of  a  depositary  ;  for,  although  the 
contract  be  for  his  benefit,  and,  in  some  instances,  for  his 
benefit  only,  yet  he  has  an  interest  in  the  land  till  the  will 
is  determined,  "  and,  our  law  adds,  it  is  the  folly  of  the 
"  lessor,  if  he  do  not  restrain  him  by  a  special  condition :'' 
thence  it  was  adjudged,  in  the  Countess  of  Shrewsbury' s 
case,  "  that  an  action  will  not  lie  against  a  tenant  at  will 
'^generally,  if  the  house  be  burned  through  his  neglect  \{t) 

(p)  Ld.  Raym.  9.  12.  (q)  2  Sho.  pi.  166. 

(r)  Doct.  and  Stud.  dial.  2.  chap.  38. 
(s)  Com.  135.     Ld.  Ravm.  9I&. 
(t)  5  Rep.  13'  b. 


[45] 


46  THL  LAW  OF  BAILMENTS. 

"but,  says  Justice  Poivcll,  "had  the  action  been  found 
•'  ed  on  a  special  undertaking, (6)  as  that,  in  considera- 
'•tion  that  the  lessor  would  let  him  live  in  the  house,  he 
**  would  deliver  it  up  in  as  good  repair  as  it  then  was  in^ 
"  such  an  action  would  have  been  maintainable." (?/) 
Buies  and  ex  ^^  being  then  established,  that  a  bailee  of  the  Jirst  sort 
ceptions.  jg  answerable  only  for  a  fraud,  or  for  ^ross  neglect,  which 
is  considered  as  evidence  of  it,(D)  and  not  for  such  ordi- 
nary inattentions  as  may  be  compatible  with  good  faith , 
if  the  depositary  be  himself  a  careless  and  inattentive  man  ; 
a  question  may  arise,  whether,  if  proof  be  given,  that  he 
is,  in  truth,  very  thoughtful  and  vigilant  in  his  own  con- 
cerns, he  is  not  bound  to  restitution,  if  the  deposit  be  lost 
through  his  neglect,  either,  ordinary  or  slight ;  and  it 
seems  easy  to  support  the  affirmative  ;  since  in  this  case 
the  measure  of  diligence  is  that  which  the  bailee  uses  in 
his  oivn  affairs.  It  must,  however,  be  confessed,  that  the 
character  of  the  individual  depositary  can  hardly  be  an 
object  of  judicial  discussion  :  if  he  be  slightly,  or  even  or- 
dinarily negligent  in  keeping  the  goods  deposited,  the  fa- 
vourable presumption  is,  that  he  is  equally  neglectful  of 
[  47  ]  liis  own  property  ;  but  this  presumption,  like  all  others, 
may  be  repelled ;  and,  if  it  be  proved,  for  instance,  that, 
his  house  being  on  fire,  he  saved  his  own  goods,  and, 
having  time  and  power  to  save  also  those  deposited,  suf- 

(w)  Ld.Raym.  911. 


(6)  See  Noy's  Maxims,  85.  Bythewood's  Ed.  201.  Earl  of  Chester- 
field V.  Duke  of  Bolton.  Com.  Rep.  627.  Bullock  v.  Domitt,  6  T.  R- 
650.    1  Wm's  Saund.  323.  n-  7.    2  Id.  422.  n.  2. 

■  [  (d)  If  this  gross  negligence  which  is  evidence  of  fraud,  can  be  re- 
butted by  evidence  that  the  depositary  keeps  his  own  goods  of  tlie  same 
kind  in  a  manner  equally  negligent,  then  he  is  not  liable.  4  Bur.  Rep. 
2300.  Stra.  1090.  Ld.  Raym.  G55.  ;  and  sec  Stanton  v.  Bell,  2  Hawks, 
is'orlh  Car.  Rep.  145. 


THE  LAW  OF  BAILMENTS.  47 

{'ered  them  to  be  burned,  he  shall  restore  the  worth  of 
them  to  the  owner.(tf)  If,  indeed,  he  have  time  to  save 
only  one  of  two  chests,  and  one  be  a  deposit,  the  other 
his  own  property,  he  may  justly  prefer  his  own ;  unless 
that  contain  things  of  small  comparative  value,  and  the 
other  be  full  of  much  more  precious  goods,  as  fine  linen 
or  silks  ;  in  which  case  he  ought  to  save  the  more  valua- 
ble chest,  and  has  a  right  to  claim  indemnification  from 
the  depositor  for  the  loss  of  his  own.  Still  farther;  if 
he  commit  even  a  gross  neglect  in  regard  to  his  own 
goods  as  ivell  as  those  bailed,  by  which  both  are  lost  or 
damaged,  he  cannot  be  said  to  have  violated  good  faith,  and 
the  bailor  must  impute  to  his  own  folly  the  confidence 
which  he  reposed  in  so  improvident  and  thoughtless  a 
person,  (cc) 

To  this  principle,  that  a  depositary  is  answerable  only 
for  gross  negligence,  there  are  some  exceptions. 

First,  as  in  Southcote''s  case,  where  the  bailee,  by  a 
special  agreement,  has  engaged  to  answer  for  less:(E) 

{w)  Poth.  Contrat  de  Dep6t,  n.  29-     Stiernh.  de  Jure  Sueon.  1.  2.  c.  5. 

{x)  Bract.  99.  b.     Justin.  Inst.  1.  3.  tit.  15.  ' 


[(e)  Yet  a  special  ag^reement  does  not  subject  him  at  all  events. 
Thus,  if  the  thing  bailed  is  destro3'ed  by  inevitable  accident,  as  light- 
ning or  tempest,  the  depositary  is  not  liable.  But  this  rule  presuppo- 
ses that  the  depositary  has  himself  been  in  no  fault,  for  he  may  by  his 
own  default  subject  the  goods  to  inevitable  accident.  Lord  Ray.  910. 
Hobart  Rep.  34.  Doct.  and  Stud.  130.  Thus,  if  a  man  lend  another  a 
horse,  and  a  house  by  chance  falls  on  the  horse,  if  it  appears  that  the  house 
was  likely  to  fall  when  the  horae  was  placed  near  it,  then  it  cannot  be 
taken  as  a  chance,  but  as  the  default  of  him  that  had  the  horse  deli- 
vered to  him;  but  if  the  house  were  strong,  and  of  likelihood,  or  common 
presumption,  in  no  danger  of  falling,  but  fell  by  a  sudden  tempest,  or 
other  casualty,  then  it  shall  be  taken  as  a  chance,  and  he  that  had  the 
keeping  of  the  horse  shall  be  discharged.  Doct.  and  Stud.  222.  1  Bac. 
Ab.  377.     A  mere  agreement  to  undertake  a  trust  infuluro,  without 


48  THE  LAW  01- '  BAILMENTS. 

"  Si  quid  nomination  convenit,"  says  the  i^omaji  lawycT, 
•'  vel  plus  vel  minus  in  singulis  contractibus,  hoc  serva^ 
*'  bitur  quod  initio  convenit ;  legem  enim  contractui  de- 
"  dit  ;"(y)  (7)  but  the  opinion  of  CelsUkS,  that  an  agree- 
ment to  dispense  loith  deceit  is  void,  as  being  contrary  to 
good  morals  and  decency,  has  the  assent  both  of  Ulpian 
and  our  English  courts,  (z) 

Seco^idly,  when  a  man  spontaneously  and  officiously 
proposes  to  keep  the  goods  of  another,  he  may  prevent  the 
owner  from  intrusting  them  with  a  person  of  more  approved 
vigilance :  for  which  reason  he  takes  upon  himself  accord- 
ing to  Julian,  the  risk  of  the  deposit,  and  becomes  respon- 
sible at  least  for  ordinary  neglect,  hut  not  for  mere  casual- 
ties.(a) 

Where  things  are  deposited  through  necessity  on  any 
sudden  emergence,  as  a  fire  or  a  shipwreck,  M.  Le 
BrUN  insists,  "  that  the  depositary  must  answer  for  less 
"  than  gross  neglect,  how  careless  soever  he  may  be  in 
*' his  own  affairs ;  since  the  jireceding  remark,  that  a 
*'  mail  who   reposes  confidence   in  an  improvident  person, 

(y)  1  Contractus,  23.  D.  de  reg'.  jur. 
(s)  Doct.  and  Stud.  dial.  2.  chap.  38. 
(a)  D.  16.  3.  1.  35. 


(7)  It  is  a  maxim  of  the  English  law,  that,  modus  ei  conventio  vincunt 
legem,  prevails  in  this,  as  well  as  every  other  species  of  contract, 
when  not  contrary  to  sound  morals,  or  any  established  principle  of  the 
law.  Vide  Viner's  Abrid.  Index,  title  Maxim.  Noy's  Maxims,  16. 
Bylhewood's  Ed.  57. 

compensation,  is  not  obligatory  ;  but  when  once  undertaken,  and  the  trust 
actually  entered  upon,  the  bailee  is  bound  to  perform  it,  according  to 
the  terms  of  the  agreement.  The  confidence  placed  in  him,  and  his 
undertaking  to  execute  the  trust,  raise  a  sufficient  consideration-  Rut- 
gers V.  Lucet,  2  Johns,  Cas.  92.  95.  and  See  1  Bac.  Ab.  375.  12  Mod. 
487.  Reeve's  E-  L.  245.  6  Ld.  Ray.  909—19.] 


THE  LAW  OF  BAILMENTS.  48 

'■*  must  impute  any  loss  to  his  oum  foUy,  is  inapplicable  to 
*'  a  case  where  the  deposit  was  not  optional ;  and  the 
''  law  ceases  with  the  reason  ofit;^^(b)  but  that  is  not  the 
only  reason;  and,  though  it  is  an  additional  misfortune, 
for  a  man  in  extreme  haste  and  deep  distress  to  light 
upon  a  stupid  or  inattentive  depositary,  yet  I  can  hardly  T  49  1 
persuade  myself,  that  more  than  perfect  ^oot/ /aiJlA  is  de- 
manded in  this  case,  although  a  violation  of  that  faith  be 
certainly  more  criminal  than  in  other  cases,  and  was 
therefore  punished  at  Ro^ne  by  a  forfeiture  of  the  double 
value  of  the  goods  deposited.  (8) 

(b)  De  la  Prestation  des  Faut^s,  p.  77- 


(8)  By  the  Code  Napoleon,  Art.  1920,  a  deposit  is  either  voluntary, 
or  necessary;  voluntary,  when  made  with  the  consent  of  both  parties  ; 
necessary,  when  induced  by  the  pressure  of  unexpected  calamity,  as 
fire  or  shipwreck;  but  by  Art-  1923,  they  are  both  governed  by  the 
same  general  principles.  By  the  same  law,  Art.  1923,  a  voluntary  de- 
posit must  be  established  by  written  proof,  when  it  exceeds  in  value 
150  francs,  (about  6Z.  5s.  when  the  exchange  is  at  par)  or  otherwise, 
the  bailor  must  rely  exclusively  upon  the  declarations  of  the  depositary, 
as  to  the  fact  of  the  deposit,  the  subject  matter  of  it,  or  the  terms  upon 
which  it  was  to  be  restored. 

The  Roman  law,  and  the  laws  of  the  greater  part  of  the  states  of  Eu- 
rope, which  bear  a  great  conformity  to  tlie  civil  law,  require  written 
proof  in  a  great  variety  of  cases ;  but  the  common  law  of  England 
rarely  requires  the  transaction  to  be  in  writing,  even  in  the  conveyance 
of  real  property,  to  which  it  paid  so  much  regard-  Tliat  form,  howe- 
ver, was  requisite  in  the  case  of  incorporeal  hereditaments  which  could 
pass  only  by  grant,  1  Inst.  9.  a.  2  Woodeson's  Lect.  C2.,  for  not  being 
of  a  substantial  nature,  and,  like  real  property,  capable  of  an  actual  de- 
livery, that  form  was  required  as  evidence  of  the  transfer.  By  statute, 
however,  writing  is  made  essential  in  many  cases,  particularly  by  the 
Stat,  of  Frauds,  29  Car.  II.  c.  3.  But  the  operation  of  that  statute,  as 
far  as  it  relates  to  contracts  for  the  sale  of  goods,  has  been  cuusidcrably 
diminished  by  a  Nisi  Prius  decision  of  Towers  v.  Osborn,  l  Str.  GOo. 
followed  in  several  subsequent  cases,  Clayton  v.  Andrews.  4  Burr.2i01, 
Groves  v-  Buck,  3  M.  and  S.  178.  by  which  a  large  class  of  contracts 

7 


49  THE  LAW  OF  BAILMENTS. 

In  these  circumstances,  however,  a  benevolent  oj^er  of 
keeping  another's  property  for  a  time  would  not,  I  tlnnk, 
bring  the  case  within  Julian's  rule  before  mentioned,  so 
as  to  make  the  person  offering  answerable  for  slight,  or 
even  ordinary  negligence ;  and  my  opinion  is  confirmed 
by  the  authority  of  Labeo,  who  requires  no  more  than 
good  faith  of  a  negotiorum  gestor,  when  "  affectione 
"  coactus,  ne  bona  mea  distrahantur,  negotiis  se  meis 
"  obtulerit." 

Thirdly  ;  when  the  bailee,  improperly  called  a  deposi- 
tary, either  directly  demands  and  receives  a  reward  for 
his  care,  or  takes  the  charge  of  goods  in  conseqiience  of  some 
lucrative  contract,  he  becomes  answerable  for  ordinary 
neglect ;  since,  in  truth,  he  is  in  both  cases  a  conductor 
operis,  and  lets  out  his  mental  labour  at  a  just  price  ; 
thus,  when  clothes  are  left  with  a  man,  Avho  is  paid  for 
the  use  of  his  bath,  or  a  trunk  with  an  inn-keeper  or  his 


has  been  excluded  from  the  influence  of  the  statute.  The  reason  upon 
which  that,  and  the  decisions  grounded  upon  it,  proceeded,  the  incapa- 
bility of compljing  with  one  of  the  three  modes  prescribed  by  the  sta- 
tute, the  delivery  of  the  goods,  does  not  appear  satisfactory,  since  one 
of  the  other  two  modes 'might  be  adopted,  and  the  declared  object  of 
the  statute  entitles  it  to  a  liberal  interpretation.  Indeed,  the  present 
Lord  Chief  Justice  of  the  court  of  King's  Bench  has  expressed  an 
opinion,  tliat  the  case  of  Towers  V.  Osborn  proceeded  to  the  limit  of 
the  law  ;  and,  perhaps,  the  recent  case  of  Garbutt  v.  Watson,  1  Dowl. 
and  R}1.  219.  may  be  considered  as  undermining,  in  some  degree, 
the  principle  of  that  decision.  That  it  ever  should  have  received  the 
sanction  of  the  court  cannot  fail  to  be  a  subject  of  regret;  and,  per- 
haps, the  disposition  lately  evinced  by  the  courts  in  the  cases  of  Sand- 
ler V.  Wakefield,  4  Barn,  and  Aid.  595.  and  Jenkyn  v.  Reynolds,  3 
Bro.  and  B.  14  Garbutt  v.  Watson,  1  Dowl.  and  EyI. 219.,  to  give  the 
statute  a  liberal  interpretation,  may  justify  the  expectation,  that  thig 
great  security  against  fraud,  and  check  to  litigation,  will  in  thisrespec 
be  one  day  restored,  and  the  case  of  Towers  v.  Osborn,  at  no  very  dis- 
tant period,  be  considered  not  to  be  law 


,  .  THK  LAW  OF  BAILMENTS.  49 

servants,  or  with  a  ferryman,  the  bailees  are  as  much 

bound  to  indemnify  the  owners,  if  the  goods  be  lost  or 

damaged  through  their  want  of  ordinary  circumspection, 

as  if  they  were  to  receive  a  stipulated  recompense  for 

their  attention  and  pains  ;  but  of  this  more  fully,  when  we     [  50  ] 

come  to  the  article  of  hiring: 

Fourthly ;  when  the  bailee  alone  receives  advantage 
from  the  deposit,  as,  if  a  thing  be  borrowed  on  a  future 
event,  and  deposited  with  the  intended  borrower,  until 
the  event  happens,  because  the  owner,  perhaps,  is  likely 
to  be  absent  at  the  time,  such  a  depositary  must  answer 
even  for  slight  negligence  ;  and  this  bailment,  indeed, 
is  rather  a  loan  than  a  deposit,  in  whatever  light  it  may 
be  considered  by  the  parties.  Suppose,  for  example, 
that  Charles,  intending  to  appear  at  a  masked  ball  ex- 
pected to  be  given  on  a  future  night,  requests  George  te 
lend  him  a  dress  and  jewels  for  that  purpose,  and  that 
George,  being  obliged  to  go  immediately  into  the  coun- 
try, desires  Charles  to  keep  the  drefss  till  his  return,  and, 

"^^  if  the  ball  be  given  m  the  mean  time,  to  wear  it ;    this 
jj  seems  to  be  a  regular  loan,  although  the  original  pur- 

\«pose  of  borrowing  be  future  and  contingent. 
\9  Since,  therefore,  the  two  last  cases  are  not,  in  strict 
propriety,  deposits,  the  exceptions  to  the  general  rule  are 
reduced  to  two  only ;  and  the  second  of  them,  I  con- 
ceive, will  not  be  rejected  by  the  English  lawyer,  al- 
though I  recollect  no  decision  or  dictum  exactly  confor- 
mable to  the  opinion  of  Julian. 

Clearly  as  the  obligation  to  restore  a  deposit  flows 
from  the  nature  and  definition  of  this  contract,  yet,  in 
the  reign  of  Elizabeth,  when  it  had  been  adjudged,  f  51  "1 
consistently  with  common  sense  and  common  honesty, 
*'  that  an  action  on  the  case  lay  against  a  man,  who  had 
"  not  performed  his  promise  of  re-delivcving,  or  deliver-  • 


^ 


51  THE  LAW  OF  BAILMENTS. 

"  ing  orer,  things  bailed  to  him,"  that  judgment  was 
reversed ;  and,  in  the  sixth  year  of  James,  judgment  for 
the  plaintiff  was  arrested  in  a  case  exactly  similar  :(c) 
it  is  no  wonder  that  the  profession  grumbled,  as  Lord 
Holt  says,  at  so  absurd  a  reversal ;  which  was  itself 
most  justly  reversed  a  few  years  after,  and  the  first  de- 
cision solemnly  established. ((/)(f) 

(c.)     \elv.  4.  50.  128. 
{d)  2  Cro.  667.     Wheatley  and  Low. 


[  (f)     If  the  depositary  detain  the  goods  after  demand  bj  the  bailor, 
or  otherwise  converts  them  to  his  own  use,  the  bailor  may  maintain 
trover,  detinue,  or  assumpsit.     He  may  maintain  trover,  on  the  ground 
of  the  conversion;  detinue,  because  the  goods  are  unlawfully  detained; 
and  assumpsit,  on  the  contract.     In  some  cases,  also,  a  special  action 
on  the  case,  and  in  others,  an  action  of  trespass,  will  lie.     Thus,  if  A. 
borrows  a  horse  to  go  to  Dover,  and  goes  to  other  places,  the  owner 
may  have  an  action  on  the  case  against  him  for  exceeding  the  purposes  "l 
of  the  loan  ;  for  so  far  it  is  a  secret  and  fallacious  abuse  of  his  property  ;    €*  / 
but  a  general  action  of  trespass  would  not  lie  in  this  case,  but  it  is  not    .  * 
an  openand  violent  invasion  of  it.     Roll.  Rep.  >28.  Bac.  Abr- 374.     But  < 

if  a  man  lend  to  another  sheep  to  stock  bis  land,  and  the  bailee  kill 
tliem,  llie  owner  shall  have  a  general  action  of  trespass,  or  an  action 
of  trover,  at  his  election ;  for  though  the  use  is  in  the  borrower,  yet  1  .^ 
tlie  property  is  in  the  lender,  and  the  killing  of  the  sheep  is  in  open  9 
violation  of  another's  property,  which  is  complained  of  in  the  general 
action  of  trespass.  Co.  Lit.  57.  Cro.  Eliz.  784.  Moore,  248.  Owen,  52. 
Dyer,  121.  pi.  17.  1  Bac.  Abr.  374-  No  action  will  lie  against  a  mere 
naked  bailee,  to  recover  goods  in  his  possession,  until  after  a  demand 
aud  refu-sal.  Brown  and  Hotchkiss  v  Cook,  9  Johns.  Rep.  361.  If 
goods  are  bailed  by  B.  to  C,  C.  must  deliver  them  to  B.,  for  C.  cannot 
pretend  to  remove  or  alter  that  possession  committed  to  him  in  order  to 
restore  it  to  the  right  owner,  for  the  right  of  restitution  must  be  de- 
manded of  him  that  did  the  injury,  of  which  C.  has  no  pretence  to 
udge,  and  therefore  it  would  be  downright  treachery  in  him  to  deliver 
them  to  any  other  than  him  from  whom  he  had  them.  Roll.  Abr.  607. 
1  Bac.  Ab  369.  This  is  io  accordance  with  the  provisions  of  the 
Code  Napoleon  on  this  subject^  article  1937,    "  Le  depositaire  ne  doit 


THE  LAW  OF  BAILMENTS.  51 

Among  the  curious  remains  of  Attic  law,  which  phi-  Grecian  aud 
lologers  have  collected,  very  little  relates  to  the  con- 
tracts which  are  the  subject  of  this  Essay ;  but  I  re- 
member to  have  read  of  Demosthenes,  that  he  was 
advocate  for  a  person,  with  whom  three  men  had  depo- 
sited some  valuable  utensil,  of  which  they  were  joint 
owners ;  and  the  depositary  had  delivered  it  to  one  of 
them,  of  whose  knavery  he  had  no  suspicion ;  upon 
which  the  other  two  brought  an  action,  but  were  non- 
suited on  their  own  evidence,  that  there  was  a  third 
bailor,  whom  they  had  not  joined  in  the  suit;  for,  the 
truth  not  being  proved,  Demosthenes  insisted,  that  his 
clients  could  not  legally  restore  the  deposit,  unless  all  three 
proprietors  were  ready  to  receive  it;  and  this  doctrine 
was  good  at  Rome  as  well  as  at  Athens,  when  the  thing 
deposited  was  in  its  nature  incapable  of  partition  ;  it  is 
also  law,  I  apprehend,  in  Westminster  Hall. (e)(9) 

(e)  D.  16  3   1.  36.     Bro.  Abr.  tit.  Bailment,  pi.  4. 


(9)     Property  belonging  to  several  joint  owners,  wlio  concurrently 
deposit  itwitb  a  bailee  by  wbom  it  is  accepted  on  their  joint  account,, 


vestituer  la  chose  deposee,  qu^a  celui  qui  la  lui  a  confiee,  ou  a  celui 
au  nonj  duquel  le  depot  a  ete  fait,  ou  a  celui  qui  a  ete  indique  pour  le 
recevoir.  Article  1938.  line  peut  pas  exiger  de  celui  qui  a  fait  le 
depot."  But  if  A.  bails  goods  to  B.  to  which  C.  has  a  right,  and  B. 
dies,  his  executors  are  ehargeable  only  to  C.  that  has  right,  for 
the  executors  came  to  the  possession  by  the  law,  and  therefore 
must  deliver  it  to  those  peisons  in  whom  the  law  has  establislied 
the  property;  and  the  taking  up  of  au  executorship  is  an  engagement  to 
answer  all  debts  of  the  deceased,  and  all  un^^takings  that  create  a 
debt,  so  far  as  there  are  assets,  but  doth  not  embark  the  executor  in 
the  personal  trusts  of  the  deceased,  any  more  than  he  is  obliged  to 
answer  for  his  several  injuries.  Rol.  Ab.  607.  1  Bac.  Ab.  3C9. 


[52  1 


52  THE  LAW  OF  BAILMENTS. 

The  obligation  to  return  a  deposit  faithfully  was,  io 
very  early  times,  holden  sacred  by  the  Greeks,  as  we 
learn  from  the  story  of  Glaucus,  (1)  who,  on  consult- 
ing the  oracle,  received  his  answer, ."  that  it  was  crimi- 
"  nal  even  to  harbour  a  thought  of  withholding  deposited 
"  goods  from  the  owners,  who  claimed  them  ;"(/)  and 
a  fine  application  of  this  universal  law  is  made  by  an 
Arabian  poet  contemporary  with  Justinian,  who  re- 
jmarks,  "that  life  and  wealth  are  only  deposited  with  us 
"  by  our  Creator,  and,  like  all  other  deposits,  must  in  due 
"time  be  restored." (g.) 
taw  of  n>aji-  II.  Employment  by  commission  was  also  known  to 
our  ancient  lawyers  ;  and  Bracton,  the  best  writer  of» 
them  all,  expresses  it  by  the  Roman  word  mandatum; 
now,  as  the  very  essence  of  this  contract  is  the  gratuitous 
performance  of  it  by  the  bailee,  and  as  the  term  cortv- 
mission  is  also  pretty  generally  applied  to  bailees,  who 
receive  hire  or  compensation  for  their  attention  and  trou- 
ble, I  shall  not  scruple  to  adopt  the  word  mandate  as 

(/)  Herod.  VI.  86.    Juv.  Sat.  XIII.  199. 


cannot  be  legally  demanded  without  the  consent  of  all  parties.  If, 
however,  the  bailee  is  not  privy  to  such  arrangement,  but  accepts  the 
property  from  one  of  them,  by  whom  as  well  as  by  the  bailee,  it  is 
treated  as  belonging  to  him  exclusively,  the  bailee  cannot  set  up  the 
want  of  consent  of  the  other  party,  not  privy  to  the  deposit,  to  prevent 
liis.re-delivery  of  the  property  to  him  who  bailed  it,  or  to  his  legal  repre- 
sentatives. May  and  another,  assignees  of  Taylor,  v.  Harvey,  13 
East,  197. 

(1)  Vide  Seneca  de  Benef.  4.  10.     Cic.  de  Off.  lib.  1.  Eden's  Ele- 
menta  Juris  Civilis,  175. 


f  (g.)  When  a  bailee  may  be  guilty  of  fjarceny.  See  1  Hawk.  P.  C. 
144  b.  1  c.  19.  s.  8,  9,  10.     The  State  v.  Long,  1  Haywood  Rep.  155.] 


THE  LAW  OF  BAILMEiNTS.  53 

appropriated  in  a  limited  sense  to  the  species  of  bailmcHt 
now  before  us ;  nor  will  any  confusion  arise  from  the 
common  acceptation  of  the  word  in  the  sense  of  a  judi- 
cial command  or  precept,  which  is,  in  truth,  only  a  se- 
condary and  inaccurate  usage  of  it.  The  great  dis- 
tinction then  between  one  sort  of  mandate  and  a  deposit 
is,  that  the  former  lie.o  in  fesance,  and  the  latter,  simply 
in  custody :  whence,  as  we  have  already  intimated,  a 
difference  often  arises  between  the  degrees  of  care  de- 
manded in  the  one  contract  and  in  the  other  ;  for, 
the  mandatary  being  considered  as  having  engaged 
himself  to  use  a  degree  of  diligence  and  attention  ade- 
quate to  the  performance  of  his  undertaking,  the  omis- 
sion of  such  diligence  may  be,  according  to  the  na- 
ture  of  the  business,  either  ordinary,  or  slight,  neg- 
lect ;  although  a  bailee  of  this  species  ought  regu- 
larly to  be  answerable  only  for  a  violation  of  good 
faith. [2)      This  is  the  common  doctrine  taken  from  the 


(2)  A  person,  who  undertakes,  without  a  reward,  to  perform  a  par- 
ticular service,  where  his  situation  is  not  such  as  to  imply  skill,  or 
knowledge,  in  the  particular  transaction,  will  not  be  responsible  for  a 
loss,  when  he  has  acted  bona  Jide,  and  exercised  the  same  care  which 
he  takes  in  his  own  affairs. 

The  defendant,  who  was  a  general  merchant  in  London,  having  re- 
ceived orders  from  his  correspondent  in  Madeira,  to  send  thither  a 
quantity  of  leather  cut  out  for  shoes  and  boots,  employed  Goodwin  the 
bankrupt,  who  was  a  shoemaker,  to  execute' the  order.  Goodwin  ac- 
cordingly prepared  the  leather  for  the  defendant,  packed  it  in  a  case 
for  exportation,  and  at  the  same  time  prepared  another  parcel  of  the 
same  kind  of  leather,  on  bis  own  account,  which  he  packed  in  a  sepa- 
rate case,  to  be  sent  to  Madeira  on  a  venture,  requesting  the  recom- 
mendation of  the  defendant  to  his  correspondents  in  the  sale  of  it.  The 
two  cases  were  sent  to  the  defendant's  house,  with  bills  of  parcels,  and 
he,  in  order  to  save  the  trouble  of  a  separate  entry  at  the  custom  house, 
voluntarily,  and  without  any  compensation,  by  agreement  witb  Good- 


53  ,  THE  LAW  OF  BAILMENTS. 

law  of  Ulpian  ;  but  there  seems,  in  reality,  to  be  no 
exception  in  the  present  case  from  the  general  rule  ;  for, 


win,  made  one  entry  of  both  the  cases,  but  did  it  under  the  denomina- 
tion of  wrought  leather,  instead  of  dressed  leather,  which  it  ought  to 
have  been.  In  consequence  of  this  mistake  in  the  entry,  the  two  ca- 
ses were  seized,  and  this  action  was  brought  by  the  assignees  of  Good- 
win, to  recover  the  value  of  the  leather,  which  he  had  prepared  to  ex- 
port on  his  own  account.  The  court  held  that  the  defendant  was  not 
liable  for  the  loss,  since  he  had  acted  bonajide,  and  taken  the  same  care 
of  the  goods  as  of  his  own,  and,  not  being  of  a  profession  which  implied 
knowledge  in  the  particular  transaction,  the  wrong  entry  could  not  in 
him  be  considered  as  gross  negligence.  Lord  Loughborough,  C  J. 
observed,  "  1  agree  with  Sir  VV.  Jones,  that  where  a  bailee  undertakes 
"  to  perform  a  gratuitous  act,  from  which  the  bailor  alone  is  to  receive 
"benefit,  there  the  bailee  is  only  liable  for  gross  negligence;  but  if  a 
"  man  gratuitously  undertakes  to  do  any  thing  to  the  best  of  his  skill, 
"  where  his  situation  or  profession  is  such  as  to  imply  skill,  an  omission 
'■  of  that  skill  is  imputable  to  him  as  gross  negligence.  If  in  this  case  a 
"  ship-broker,  or  a  clerk  in  the  custom-house,  had  undertaken  to  enter 
"  the  goods,  a  wrong  entry  would  in  them  be  gross  negligence,  because 
*'  their  situation  and  employment  necessarily  imply  a  competent  degree 
"of  knowledge  in  making  such  entries  ;  but  wheaan  application,  un- 
"  der  the  circumstances  of  this  case,  is  made  to  a  general  merchant  to 
"  make  an  entry  at  the  custom-house,  such  a  mistake  as  this  is  not  to 
"  be  imputed  to  him  as  gross  negligence."  Shiells  and  Thome,  assign- 
ees of  Goodwin,  v.  Blackburne,  1  Hen.  Bl.  158.  See  Nelson  v.  Mcin- 
tosh, 1  Stark.  238. 

So,  a  gratuitous  b  ailee,  who  turns  a  horse  after  dark  into  a  dangerous 
pasture  to  which  it  was  unaccustomed,  in  consequence  of  which  it 
meets  with  its  death,  is  guilty  of  that  degree  of  negligence  which  will 
render  him  responsible  to  the  bailor.  In  an  action  for  not  repairing  the 
fences  of  a  close  adjoining  that  of  the  plaintiff,  in  consequence  of  which 
the  plaintiff's  horse  fell  into  the  defendant's  close,  and  was  killed,  it  ap' 
peared  tha  t  the  horse  was  the  property  of  the  plaintiff's  brother,  who 
sent  it  to  him  the  night  before  the  accident ;  that  the  plaintiff  put  it  in- 
to his  stable  for  a  short  time,  and  then  turned  it  after  dark  into  his  close 
where  his  own  cattle  usually  grazed,  and  that  on  the  following  morn, 
ing  the  borse  was  found  dead  in  the  close  of  the  defendant,  having  fall- 
en from  the  one  to  the  other.     Lord  Ellenborough,  C.  J.  observed) 


THE  LAW  OF  BAILMENTS.  53 

since  good  faith  itself  obliges  every  man  to  perform  his 
actual  engagements,  it  of  course  obliges  the  mandatary 
to  exert  himself  in  proportion  to  the  exigence  of  the  af- 
fair in  hand,  and  neither  to  do  any  thing,  hoAV  minute  so- 
ever, by  which  his  employer  may  sustain  damage,  nor 
omit  any  thing,  however  inconsiderable,  which  the  nature 
of  the  act  requires  :{g)  nor  will  a  want  of  ability  to  per- 
form the  contract  be  any  defence  for  the  contracting  par- 
ty ;  for,  though  the  law  exacts  no  impossible  things,  yet  it 
may  justly  require  that  every  man  shovdd  know  his  own 
strength  before  he  undertakes  to  do  an  act,  and  that,  if 
he  delude  another  by  false  pretensions  to  skill,  he  shall 
be  responsible  for  any  injury  that  may  be  occasioned  by 
such  delusion.  If,  indeed,  an  unskilful  man  yield  to  the 
pressing  instances  of  his  friend,  who  coidd  not  otherwise 
have  his  work  performed,  and  engage  reluctantly  in  the 

(g)  Lord  Raym.  910. 


that  the  plaintiff,  although  he  was  a  gratuitous  hailce,  owed  it  to  the 
bailor,  not  to  put  the  horse  into  a  dangerous  pasture.  Perhaps  the 
horse  might  have  been  safe  during  the  day-light,  but  that  the  turning 
it  into  a  pasture  to  wliich  it  was  un-uscd.  after  dark,  was  a  degree  of 
negligence  sufficient  to  render  him  liable,  and  that  consequently  the 
plaintiff  might  maintain  an  action  in  his  own  name.  Booth  v.  Wilson, 
1  Barn,  and  Aid.  59.(n) 


[(h)  Where  the  bailee  undertakes  to  perform  a  gratuitous  act,  from 
which  the  bailor  alone  receives  benefit,  there  the  bailee  is  liable  only 
for  gross  neglect.  Sccus,  where  the  profession  of  the  bailee  implies 
skill,  for  then  want  of  skill  is  imputable  as  gross  neglect.  Stanton  v- 
Bell,  2  Hawks.  North  Car.  Rep.  145. 

A  person  or  corporation  allowing  his  or  its  servants,  or  clerks,  to  re- 
ceive for  custody  the  goods  of  another,  especially  in  relation  to  special 
deposits,  will  be  considered  the  bailee  of  the  goods  so  received,  and 
will  incur  all  the  duties  and  liabilities  belonging  to  that  relation.  Fos- 
ter V.  Essex  Bank,  17  Mass.  Rep.  479.] 

8 


53 


THE  LAW  OF  BAILMENTS. 


[54] 


Distinction 
between  ni'S- 
fea$ance  and 
«07i<easance. 


business,  no  higher  degree  of  dihgence  ean  be  demand- 
ed of  him  than  a  fair  exertion  of  his  capacity. 

It  is  ahnost  needless  to  add,  that  a  mandatary,  as  well 
as  a  depositary,  may  bind  himself  by  a  special  agreement 
to  be  answerable  even  for  casualties  ;(3)  but  that  neith- 
er the  one  nor  the  other  can  exempt  himself  by  any  sti- 
pulation from  responsibility  for  fraud,  or,  its  equivalent, 
gi-oss  neglect. 

A  distinction  seems  very  early  to  have  been  made  in 
our  law  between  the  nowfesance,  and  the  7nisfesance,(4 


(3)  The  parties  to  a  bailment  may  not  only  vary  the  terms  accord- 
ing to  their  pleasure,  but  a  bailee  may  impose  upou  himself  an  addi- 
tional degree  of  care  on  account  of  his  interfering  with  the  property 
committed  to  his  charge,  by  which  its  custody  is  rendered  more  inse- 
cure.    As  when  a  captain  of  a  vessel,  who  had,  without  a  reward,  ta- 
ken charge  of  a  box  containing  doubloons,  dollars,  and  other  valuable 
articles,   belonging  to  a  person  who  was  to  have  worked   his  passage 
home,  but  was  accidently  left  behind,  during  the  course  of  the  voyage, 
opened  the  box  for  the  purpose  of  ascertaininor  whether  it  contained 
contraband  goods,  and  upon  the  arrival  of  the  ship  towards  the  end  of 
the  voyage  he  again  opened  it  in  the  presence  of  several  passengers,  and 
taking  out  the  contents,  which  he  put  into  a  canvass  bag.  deposited 
them  in  his  cliest  in  the  cabin,  in  which  his  own  valuables  were  usual- 
ly kept.-    When  the  vessel  arrived  at  Gravesend,  a  river  pilot  was  ta- 
ken on  board,  and  the  captain  and  one  mate  left  the  vessel,  another 
mate  remaining  on  board ;  an  excise  ofBcer  was  also  on  board,  and  two 
young  men  belonging  to  the  vessel  were  allowed  to  sleep  in  the  cabin. 
On  the  next  morning  the  bag  containing  the  valuables  was  missing, 
and  was  not  afterwards  discovered.     In  an  action  to  recover  the  value 
of  the  property,  the  captain  was  holden  to  have  imposed  upon  himself 
the  duty  of  carefully  guarding  against  all  perils  to  which  the  property 
was  exposed,  by  means  of  the  alteration,  and  having  failed  to  take  such 
care,  in  consequence  of  which  the  loss  happened,  he  was  responsible 
for  the  loss,  although  as  a  bailee  without  hire  he  was  only  bound  to  take 
prudent  care  of  them.     Nelson  v.  Rlacintosh,  1  Stark.  N.  P.  C  237. 

(-1)  This  distinction  is  well  established.  An  action  for  a  mere  non- 
feasance cannot  be  maintained,  even  when  accompanied  with  special 
damage  ;  as  if  a  carpenter  undertakes  to  build  a  house,  within  a  given 


Tilt:  LAW  OF  BAILMENTS.  54 

of  a  conductor  O'peris,  and,  by  equal  reason,  of  a  manda- 
tary ;  or,  in  otlicr  words,  between  a  total  failure  of  per- 


timc,  and  refuse  to  proceed,  in  consequence  of  \vliicli  an  injury  is  sus- 
tained, no  action  will  lie,  11  Hen.  IV.  33.  A.  21.  Hen.  VI.  55.  b.  1  Roll. 
Ahr  9.  pM,  2.  '2  Ld.  Raym.  1919,  1^20.  Eisee  v.  Gatvvard,  5  T.  F.  143. 
except  in  certain  cases  where,  from  their  situation,  some  persons  are 
bound  to  do  what  is  requested  of  them  in  the  course  of  their  employ- 
ment, and  arc  entitled  to  a  recompense.     As  in  the  case  of  a  carrier, 
vide  post,  103  n. ;  or  an  inn-keeper,  vide  post,  95  n. ;  or  where  a  farrier, 
having  materials  for  the  purpose,  refuses  to  shoe  the  horse  of  a  travel- 
ler, (21  Ren.  VI.  c.  55,  56.  1  Salk.  18   1  Ld.  Raym.  634.  12  Mod.  484. ;) 
or  a  ferryman  to  convey  one  over  a  common  ferry,  and  the  like ;  Cliurch- 
ma.i  V  Tunstal,  Hardress,  163.  5.  T.  R.  149,  150.  1  Wm's  Saund-  312.  n. 
2.     This   doctrine   was  established    and    illustrated   in  a  late  case,  ia 
which  the  first  count  of  tlie  declaration  stated,  that  the  plaintiff  had  re- 
tained the  defendant,  who  was  a  builder,  to  build  and  repair  certain 
premises  within  a  given  dsy,  and  that  the  defendant  accepted  the   re- 
tainer, but  did  not  perform  the  work  within  the  given  time,  in  conse- 
quence of  which  the  walls  of  the  plaintiff's  house  were  injured,  and  the 
plaintiff  in  other  respects  was  damaged  and  put  to  expense.     And  (he 
second  count,  that  the  plaintiff  being  in  possession  of  some  old  materi- 
als retained  the  defendant  to  perform  tlie  carpenter's  work  on  certain 
buildings  of  the  plaintiff,  and  to  use  the  old  materials,  but  that  the  de- 
fendant, instead  of  using  them,  made  usf  of  new  ones,  thereby  increas- 
ing the  expense.     And  upon  a  general  demurrer  to  the  whole  decla- 
ration, the  court  gave  judgment  for  the  defendant,  upon  the  ground 
that  the  first  count  was  not  good   in  law,  since  no  consideration  was 
stated,  or  that  the  defendant  had  entered  upon  the  work.     The  se- 
cond count,  however,  was  considered  to  be  valid,  for  the  defendant's 
misfeasance  in  not  performing  the  work  which  he  had  entered  upon, 
according  to  his  retainer,  by  which  the  plaintiff  was  subject  to  consi- 
derable expense,  was  a  good  cause  of  action. 

Tjord  Kenyon,  C.  J  observed,  '*  that  no  consideration  results  fpom 
"  the  defendant's  situation  as  a  carpenter,  nor  is  he  bound  to  perform 
"  all  the  work  that  is  tendered  to  him.''  And  Mr.  Justice  Ashhurst,  in 
giving  his  opinion  on  the  same  case,  remarked  the  following  distinction  : 
"  If  a  party  undertake  to  perform  work,  and  proceed  on  the  employ- 
"  ment,  he  makes  himself  liable  for  any  misfeasance  in  the  course  of 
"  that  work.     But  if  he  undertake,  and  do  net  proceed  on  (he  work,  no 


54 


THE  LAW  OF  BAILMENTS. 


forming  an  executory  undertaking,  and  a  culpable  neglect 
in  executing  it ;  for,  when  an  action  on  the  case  was 
brought  against  a  carpenter,  who,  having  undertaken  to 
build  a  new  house  for  the  plaintiff  within  a  certain  time, 
[  55  ]  had  not  huilt  it,  the  court  gave  judgment  of  nonsuit;  but 
agreed,  that,  if  the  defendant  had  built  the  house  negli- 
gently and  spoiled  the  timber,  an  action  against  him 
would  have  been  maintainable. (A)  However,  in  a  sub- 
sequent reign,  when  a  similar  action  was  commenced 
against  one  Watkins  for  not  building  a  mill  according 
to  his  undertaking,  there  was  along  conversation  between 
the  judges  and  the  bar,  which  Chief  Justice  Bahington  at 
leno-th  interrupted  by  ordering  the  defendant's  counsel 
either  to  plead  or  to  demur  :  but  Serjeant  HoJf  chose  to 
plead  specially,  and  issue  was  taken  on  a  discharge  of 
the  a"'reement.(i)  Justice  iV/ar^m  objected  to  the  action, 
because  no  tort  was  alleged  ;  and  he  persisted  warmly 
in  his  opinion,  which  seems  not  wholly  irreconcilable  to 
that  of  his  two  brethren  ;  for  in  the  cases  which  they 
put,  a  special  injury  luas  supposed  to  be  occasioned  by  the 
non-performance  of  the  contract. 

Authority  and  reason  both  convince  me,  that  Martin, 

(/))  YearB.  11  Hen.  IV.  33.(5) 

(i)  Year  B.  3  Hen.  VI.  36.  b.  37.  a.     Stath.  Abr.  tit.  Accions  sur  le  ca&, 
pi.  20. 


'  action  will  lie  against  him  for  the  misfeasance.  In  this  case,  the 
'  defendant's  undertaking  was  merely  voluntarji  no  consideration  for 
'  it  being  stated.  There  was  no  custom  of  the  realm,  or  any  legal  ob- 
'  ligation  to  compel  him  to  perform  the  work,  and  that  distinguishes  this 
'  case  from  those  of  a  common  carrier,  porter,  and  ferryman,  who  are 
'  bound  by  their  sitnalions  in  life  to  perform  the  work  tendered  to  them  ; 
'  but  a  carpenter,  as  such,  is  not  bound  by  any  such  obligation."  El- 
see  V.  Gatward.  5T.R.  143. 
(i)  See  5  Term  Rep.  160. 


THE  LAW  OF  BAILMENTS.  55 

into  whose  opinion  the  reporter  recommends  an  inquiry, 
was  wrong  in  his  objection,  if  he  nieane(J,  as  Justice  Co- 
knin  and  the  Chief  Justice  seem  to  have  understood 
him,  that  no  such  action  would  he  for  rionfeasance,  even 
though  special  damage  had  been  stated.  His  argument 
was,  that  the  action  before  tliem  sounded  in  covenant 
merely,  and  required  a  specialty  to  support  it ;  but  that,  [  56  ] 
if  the  covenant  had  been  changed  into  a  tort,  a  good  writ 
of  trespass  on  the  case  mi_g-ht  have  been  maintained  :  he 
gave,  indeed,  an  example  of  misfeasance,  but  did  not  con- 
trovert the  instances  which  were  given  by  the  other 
judges. 

It  was  not  alleged,  in  either  of  the  cases  just  cited, 
that  the  defendant  was  to  receive  pay  for  the  feasance  of 
his  work  ;  but,  since  both  defendants  were  described  as 
actually  in  trade,  it  was  not,  perhaps,  intended  that  they 
were  to  work  /or  nothing  :  I  cannot,  however,  persuade 
myself,  that  there  would  have  been  any  difterence,  had 
the  promises  been  purely  gratuitous,  and  had  the  special 
injury  been  caused  by  the  breach  of  them.  Suppose,  for 
instance,  that  Robert's  corn-fields  are  surrounded  by  a 
ditch  or  trench,  in  which  the  water  from  a  certain  spring 
used  to  have  a  free  course,  but  which  has  of  late  been 
obstructed  by  soil  and  rubbish  ;  and  that  Robert  inform- 
ing his  neighbour  Henry  of  his  intention  speedily  to  clear 
the  ditch,  Henry  offers  and  undertakes  immediately  to 
remove  the  obstruction  and  repair  the  banks  ivithout  re- 
ward, he  having  business  of  the  same  kind  to  perform  on 
his  own  grounds  :  if,  in  this  case,  Henry  neglect  to  do 
the  work  undertaken,  "  and  the  water,  not  having  its 
"  natural  course,  overflow  the  fields  of  Robert  and  spoil 
*'  his  corn,"  may  not  Robert  maintain  his  action  on  the 
case  ?  Most  assuredly  ;  and  so  in  a  thousand  instances 
of  proper  bailments  that  might  be  supposed,  where  a  just 


§7  THE  LAW  OF  BAILMENTS. 

reliance  on  the  promise  of  the  defendant  prevented  the 
plaintiff  from  employing  another  person,  and  was  con- 
sequently the  cause  of  the  loss  which  he  sustained  ;{k) 
for  it  is,  as  it  ought  to  be,  a  general  rule,  that,  for  every 
damnum  injuri'  datum,  an  action  of  some  sort,  which  it 
is  the  province  of  the  pleader  to  advise,  may  be  main- 
tained ;  and  although  the  gratuitous  performance  of  an 
act  be  a  henejit  conferred,  yet,  according  to  the  just 
,  maxim  of  Paulus,  Adjuvari  nos,  non  decipi,  benvficio 

oportet  :(l)  but  the  special  damage,  not  the  assumption, 
is  the  cause  oithis  action  ;(i)  and,  if  notice  be  given  by  the 
mandatary,  before  any  damage  incurred,  and  while  another 
person  may  he  employed,  that  he  cannot  perform  the  work, 
no  process  of  law  can  enforce  the  performance  of  it. 

A  case  in  BrooJc,  made  complete  from  the  Year-book, 
to  which  he  refers,  seems  directly  in  point ;  for,  by  Chief 
Justice  FiNEAUX,  it  had  been  adjudged,  that,  "  if  a 
"  man  assume  to  build  a  house  for  me  by  a  certain  day, 
"  and  do  not  build  it,  ajid  I  suffer  damage  by  his  non- 
"  feasance,  I  shall  have  an  action  on  the  case,  as  well  as 
"  if  he  had  done  it  amiss  :"  but  it  is  possible,  that  Fi- 

(k     Year  B.  19  Hen.  VI.  49, 
(Z)  D.  13.  6.  17.3. 


[(i)  The  learned  author  cites  no  authority  in  support  of  the  position, 
"  that  the  action  is  founded  on  the  special  damage,  and  not  on  the  as- 
sumption," and  it  does  not  appear  to  be  correct  on  principle :  for  if  the 
action  is  founded  on  the  tort,  and  not  on  the  contract,  how  is  it  possible 
that  an  express  agreement  by  the  mandatary,  will  extend  his  liability, 
which  it  certainly  may  do  ?  If-his  express  promise,  as  a  promise,  can- 
not bind  him,  how  can  a  promise  extend  the  liabilily  which  the  law 
would  otherwise  impose  .=  Lord  Ray.  910 — 910.  3  East  Rep.  62.  5 
Term  Rep.  140—9.    Elsee  v.  Gatwood-] 


THE  LAW  OF  BAILMENTS.  57 

nearix  mijjht  suppose  a  consideration,  though  none  be 
mentioned. f^w^ 

Actions  on  this  contract  are,  indeed,  very  uncommon, 
for  a  reason  not  extremely  flattering  to  human  nature ; 
because  it  is  very  uncommon  to  undertake  any  office  of 
trouble  loithout  compensation :  but,  whether  the  case 
really  happened,  or  the  reward,  which  had  actually  been  [  58  ] 
stipulated,  was  omitted  in  the  declaration,  the  question, 
*'  whether  a  man  was  responsible  for  damage  to  certain 
"  goods,  occasioned  by  his  negligence  in  performing  a 
"  GRATUITOUS  promise,"  came  before  the  court  in  which 
Lord  Holt  presided,  so  lately  as  the  second  year  oi 
Queen  Anne  ,  and  a  point  which  the  first  elements  of 
the  Roman  law  have  so  fully  decided,  that  no  court  of 
judicature  on  the  Continent  would  suffer  it  to  be  de- 
bated, was  thought  in  England  to  deserve,  what  it  cer- 
tainly received,  very  great  consider ation.(n) 

The  case  was  this:  Bernard  had  assumed  without  CaseofCoggs 

J.  .  1  1         /•  1  1      /•  and  Bernard. 

pay  saiely  to  remove  several  casks  or  brandy  irom  one 
cellar,  and  lay  them  down  safely  in  another,  but  manag- 
ed them  so  negligently,  that  one  of  the  casks  was  staved. 
After  the  general  issue  joined,  and  a  verdict  for  the 
plaintiff'  Coggs,  a  motion  was  made  in  arrest  of  judg- 
ment, on  the  irrelevancy  of  the  declaration,  in  which  it 
was  neither  alleged,  that  the  defendant  was  to  have  any 
recompense  for  his  pains,  nor  that  he  was  a  common  por- 
ter :  but  the  court  were  unanimously  of  opinion,  that  the 
action  lay  ;  and,  as  it  was  thought  a  matter  of  great  con- 
sequence, each  of  the  judges  delivered  his  opinion  se- 
parately. 

(m)  Bro.  Abr.  tit.  Action  sur  le  Case,  72.(6) 

(n)  Ld.  Raym.  909—920.     1  Salk.  26.     Com.  133.     Farr.  13.  131.  528. 

(6)  See  5  Term  Rep.  143. 


[59] 


59  THE  LAW  OF  BAILMENTS. 

The  Chief  Justice,  as  it  has  before  been  intimatecf,(o) 
pronounced  a  clear,  methodical,  elaborate  argument ;  in 
which  he  distinguished  bailments  into  six  sorts,  and  gave 
a  history  of  the  principal  authorities  concerning  each  of 
them.  This  argument  is  justly  represented  by  my  learn- 
ed friend,  the  annotator  on  the  First  Institute,  as  "  a  most 
"  masterly  view  of  the  whole  subject  of  bailment  f^ijp) 
and,  if  my  little  work  be  considered  merely  as  a  com- 
mentary on  it,  the  student  may,  perhaps,  think,  that  my 
time  and  attention  have  not  been  unusefully  bestowed. 

For  the  decision  of  the  principal  case,  it  would  have 
been  sufficient,  I  imagine,  to  insist,  that  the  point  was 
7iot  new,  but  had  already  been  determined ;  that  the  writ 
in  the  Register,  called,  in  the  strange  dialect  of  our 
forefathers,  De  pipu  vini  cariand'{q),  was  not  similar, 
but  identical ;  for,  had  the  reward  been  the  essence  of 
the  action,  it  must  have  been  inserted  in  the  writ,  and 
nothing  would  have  been  left  for  the  declaration  but  the 
[  60  ]  stating  of  the  day,  the  year,  and  other  circumstances  ; 
of  which  Rastell  exhibits  a  complete  example  in  a  writ 
and  declaration  for  negligently  and  improviJently  plant- 
ing a  quickset  hedge,  which  the  defendant  had  promised 
to  raise,  without  any  consideration  alleged ;  and  issue 
was  joined  on  a  traverse  of  the  negligence  and  improvi- 
dence(7.)  How  any  answer  could  have  been  given  to 
these  authorities,  I  am  at  a  loss  even  to  conceive  ;  but, 
although  it  is  needless  to  prove  the  same  thing  twice, 
yet  other  authorities,  equally  unanswerable,  were  addu- 


(o)  p.  35. 

{p)  Hargr.  Co.  Litt.  89.  b.  n.  3.  The  profession  must  lament  the  neces- 
sary suspension  of  this  valuable  work. 

{q)  Reg.  Orig.  110.  a.  see  also  110.  b.  De  equo  infirmo  sanando,  and 
De  columbari  reparando. 

(/•)  Rast.  Entr.  13.  b. 


THE  LAW  OF  BAILMENTS.  ^ 

ced  by  the  court,  and  supported  with  reasons  no  less 
cogent ;  for  nothing,  said  Mr.  Justice  Poivell  emphati- 
cally, is  laiv,  that  is  not  reason  ;(7)  a  maxim,  in  theory 
excellent,  but  in  practice  dangerous,  as  many  rules,  true 
in  the  abstract,  are  false  in  the  concrete  ;  for,  since  the 
reason  of  Titius  may,  and  frequently  does,  differ  from 
the  reason  of  Septimlus,  no  man,  who  is  not  a  lawyer, 
would  ever  know  how  to  act,  and  no  man  who  is  a  law- 
yer, would  in  many  instances  know  what  to  advise,  un- 
less courts  were  bound  by  authority,  as  firmly  as  the 
pagan  deities  were  supposed  to  be  bound  by  the  decrees 
of  fate. 

Now,  the  reason  assigned  by  the  learned  judge  for  the 
cases  in  the  Register  and  Year-books,  which  were  the 
same  with  Coggs  and  Bernard,  namely,  "  that  the  par- 
"  ty's  SPECIAL  assumpsit  and  undertaking  obliged  him  so 
"  to  do  the  thing,  that  the  bailor  came  to  no  damage  by 
"  his  neglect,"  seems  to  intimate  that  the  omission  of  [  61  "I 
the  words  salvo  et  secure  woidd  have  made  a  difference  in 
this  case,  as  in  that  of  a  deposit ;  but  I  humbly  contend, 
that  those  words  are  implied  by  the  nature  of  a  contract 
which  lies  in  feasance,  agreeably  to  the  distinction  with 
which  I  began  this  article.  As  judgment,  indeed,  was 
to  be  given  on  the  record  merely,  it  was  unnecessary, 
and  might  have  been  improper,  to  have  extended  the 
proposition  beyond  the  point  then  before  the  court ;  but 
I  cannot  think  that  the  narrowness  of  the  proposition  in 
this  instance  affects  the  general  doctrine  which  I  have 
presumed  to  lay  down ;  and,  in  the  strong  case  of  the 
shepherd,  who  had  a  flock  to  keep,  which  he  suffered 
through  negligence  to  he  drowned,  neither  a  reward  nor  a 


(7)  2Ld.  Raym.  911 

9 


QX  THE  LAW  OF  BAILMENTS. 

special  undertaking  are  stated  (s) :  that  case,  in  the  opi- 
nion of  Justice  Townsend,  depended  upon  the  distinction 
between  a  bargain  executed  and  executory  ;  but  I  cannot 
doubt  the  relevancy  of  an  action  in  the  second  case,  as 
well  as  the  first,  tohenever  actual  damage  is  occasioned  hy 
the  nonfeasancc.{t){9) 

There  seems  little  necessity,  after  this,  to  mention  the 
r  Q2  1  case  of  Powtuary  and  Walton,  the  reason  of  which  ap- 
plies directly  to  the  present  subject ;  and,  though  it  may 
be  objected  that  the  defendant  was  stated  as  a  farrier^ 
and  must  be  presumed  to  have  acted  in  his  trade,  yet 
Chief  Justice  Rolle  intimates  no  such  presumption  ;  but 
says  expressly,  that  "  an  action  on  the  case  lies  upon 
"this  matter,  loithout  alleging  any  consideration:  for 
the  negligence  is  the  cause  of  action,  and  not  the  assump- 
sit.''{n) 

A  bailment  without  reward  to  carry  from  place  to 
place,  is  very  difterent  from  a  mandate  to  perform  a 
ivork :  and,  there  being  nothing  to  take  it  out  of  the 
general  rule,  I  cannot  conceive  that  the  bailee  is  respon- 
sible for  less  than  gross  neglect,  unless  there  be  a  special 
acceptance  :    for  instance,  if  Stephen  desire  Philip  to 

(j)  Year  B.  2  Hen.  VII.  11. 

(/)  Stath.  Abr.  tit.  Acciones  sur  le  cas,pl.  11.  Bv  Justice  Paston,  "  si  im 
"  ferrour  face  covenant  ove  moy  de  ferrer  mon  chival,  jeo  die  qe  sil  ne  fer- 
''  ra  mon  chival,  uncore  jeo  averai  accion  sur  mon  cas,  qar  en  son  default 
«'  peraventure  mon  chival  est  perie."'(f') 

(u)   1  Ro.  Abr.  10. 


(8)  This  case  is  distinguishable  ;  for  a  farrier,  like  a  common  car- 
rier, or  iakeeper,  is  bound  by  law  to  perform  certain  duties,  for  which 
he  is  entitled  to  a  recompense  ;  but  where  no  such  obligation  results 
from  the  particular  situation  of  the  party,  a  consideration  must  be  al- 
leged, in  order  to  render  him  liable.  Elsee  v.  Gatward,  5  T.  R.  149. 
ante  p,  54. 

(9)  Vide  ante  p-  54.n.  3. 


THE  LAW  OF  BAILMENTS.  62 

carry  a  diamond  ring  from  Bristol  to  a  person  in  London-, 
and  he  put  it,  tvith  hank  notes  of  liis  own,  into  a  letter- 
case,  out  of  which  it  is  stolen  at  an  inn,  or  seized  by  a 
robber  on  the  road,  Philip  shall  not  be  answerable  for 
it ;  although  a  very  careful,  or  perhaps  a  commonly  pru- 
dent, man  would  have  kept  it  in  his  purse  at  the  inn,  and 
have  concealed  it  somewhere  in  the  carriage ;  but,  if  he 
were  to  secrete  his  own  notes  with  peculiar  vigilance,  and 
either  leave  the  diamond  in  an  open  room,  or  wear  it  on 
Jhis  finger  in  the  chaise,  I  think  he  would  be  bound,  in 
case  of  a  loss  by  stealth  or  robbery,  to  restore  the  value 
of  it  to  Stephen :  every  thing,  therefore,  that  has  been  f  63  1 
expounded  in  the  preceding  article  concerning  deposits, 
may  be  applied  exactly  to  this  sort  of  bailment,  which 
may  be  considered  as  a  subdivision  of  the  second  spe- 
cies. 

Since  we  have  nothing  in  these  cases  analogous  to  the 
judgments  of  infamy,  which  were  often  pronounced  at 
Rome  and  Athens,  it  is  hardly  necessary  to  add,  what 
appears  from  the  speech  of  Cicero  for  S.  Roscius,  of 
Ameria,  that  "  the  ancient  Romans  considered  a  manda- 
"  tary  as  infamous,  if  he  broke  his  engagement,  not  only 
"  by  actual  fraud,  but  even  by  more  than  ordinary  negli" 
"■  genceiio).''^ 

As  to  exceptions  from  the  rule  concerning  the  degree  Exceptions  lo 
of  neglect,  for  which  a  mandatary  is  responsible,  almost  ^'^*^  '""''^* 
all  that  has  been  advanced  before  in  the  article  of  dcpo- 
sits,  in  regard  to  a  special  convention,  a  voluntary  offer, 
and  an  interest  accruing  to  both  parties,  or  only  to  the 
bailee,  may  be  applied  to  mandates :  an  undertaker  of  a 

(m>)  "  In  privatis  rebus,  siquis  rem  raandatam  non  modo  malitiosiiis ges- 
sisset,  sui  qutestfts  aut  commodi  causa,  verum  etiam  iiegligentiiis,  cum  ma- 
jores  summum  admisissc  dedecus  existimabant ;  itaque  mandati  constitu- 
turo  est  judicium,  non  minns  turpequam  furfi.'"  Pro  S.  Rose.  p.  116.  Gl3«g. 


63  THE  LziW  OF  BAILMENTS. 

work  for  the  benefit  of  an  absent  person,  and  without ' 
his  knouletfge,  is  the  negotiorum  gestor  of  the  civilians, 
and  the  obligation   resulting  from  his  implied  contract 
has  been  incidentally  mentioned  in  a  preceding  page. 
[  64  J  III.  On  the  third  species  of  bailment,  which  is  one  of 

Law  of  luans 

for  use.  the  most  usual  and  most  convenient  in  civil  society,  little 

remains  to  be  observed ;  because  our  own,  and  the  Ro- 
man law,  are  on  this  head  perfectly  coincident.  I  call 
it,  after  the  French  lawyers,  loan  for  use,  to  distinguish 
it  from  their  loan  for  consumption,  or  the  MUTUUM  of 
the  Romans ;  by  which  is  understood  the  lending  of  mo- 
ney, U'ine,  corn,  and  other  things,  that  may  he  valued  by 
number,  tveight,  or  measure,  and  are  to  be  restored  only  in 
equal  value  or  quantity  (x) :  this  latter  contract,  which, 
according  to  St.  Ger3IAN,  is  most  properly  called  a  loan, 
does  not  belong  to  the  present  subject ;  but  it  may  be 
right  to  remark,  that,  as  the  specific  things  are  not  to  be 
returned,  the  absolute  property  of  them  is  transferred  to  the 
borrower,  who  must  bear  the  loss  of  them,  if  they  be  des- 
troyed by  wreck,  pillage,  fire,  or  other  inevitable  misfor- 
tu7ie.{l)     Very  diflerent  is  the  nature  of  the  bailment  in 

(x)  Docl.  and  ctud  dial.  2.  chap.  38.  Bract.  99.  a.  b.  In  Ld.  Rajm. 
9;  6.  where  this  passage  from  Bracton  is  cited  by  the  Chief  Justice,  mutuam 
is  printed  for  commodatuin ;  but  what  then  can  be  made  of  the  words  ad 
ipsam  restituendam  .'  There  is  certainly  some  mistake  in  the  passage,  which 
must  be  very  ancient,  for  the  oldest  MS.  that  I  have  seen,  is  conformable  to 
Tottel's  edition.  I  suspect  the  omission  of  a  whole  line  after  the  word 
precium,  where  the  manuscript  has  a  full  point:  and  possibly  the  sentence 
omitted  may  be  thus  supplied  from  Justinian,  whom  Bracton  copied.  "  At 
is,  qui  mutuam  accepit,  obligatus  remanet,"  si  forte  incendio,  &c.  Inst.  3> 
13  2. 


(!)  If  mone}',  corn,  wine,  or  any  other  such  thing  wliich  canapt  be 
re-delivered,  or  occupied,  be  borrowed,  and  it  perish,  it  is  at  the  peril 
of  the  borrower.     But  if  a  horse,  or  cart,  or  such  other  things,  as  may 


THE  LAW  OF  BAILMENTS.  65 

qestion ;  for  a  horse,  a  chariot,  a  book,  a  greyhound,  or 
a  fowHng  piece,  which  are  lent  for  the  use  of  the  bailee, 
ouoht  to  be  re-cljelivered  specifically  ;  and  the  owner  must 
abide  the  loss,  if  they  perish  through  any  accident  which 
«  very  careful  and  vigilant  man  could  not  have  avoided. 
The  negligence  of  the  borrower,  who  alone  receives 
benefit  from  the  contract,  is  construed  rigorously,  and, 
although  slight,  makes  him  liable  to  indenmify  the  lend- 
er ;  nor  will  his  incapacity  to  exert  more  than  ordinary 
attention,  avail  him  on  the  ground  of  an  impossibility, 
"  which  the  law,"  says  the  rule,  never  "  demands;"  for 
that  maxim  relates  merely  to  things  absolutely  impossi- 
ble ;  and  it  was  not  only  very  possible,  but  very  expedi- 
ent, for  him  to  have  examined  his  own  capacity  of  per- 
forming the  undertaking,  before  he  deluded  his  neigh- 
bour by  engaging  in  it :  if  the  lender,  indeed,  was  not 
deceived,  but  perfectly  knew  the  quality,  as  well  as  age, 
of  the  borrower,  he  must  be  supposed  to  have  demand- 
ed no  higher  care  than  that  of  which  such  a  person  was 
capable  ;    as,  if  Paul  lend  a  fine  horse  to  a  raw  youth, 


be  used  and  delivered  again,  be  used  according  to  the  purpose  for 
which  they  were  lent,  if  they  perish,  he  who  owns  them  shall  bear  the 
loss,  if  they  perish  not  through  default  of  him  who  borrowed  them,  or 
he  made  a  promise  at  the  time  of  delivery  to  re-deliver  them«afe  again. 
If  they  be  used  in  any  other  manner  than  according  to  the  lending,  in 
whatever  manner  they  may  perish,  if  it  be  not  by  default  of  the  owner, 
he  who  borrowed  them  shall  be  charged  with  them,  in  law  and  con- 
science.    Noy's  Maxims,  91.     Bythewood's  Ed.  2I1.(k) 


[(k)  So  it  has  been  decided  in  South  Carolina,  "  That  even  though 
the  bailee  used  due  care,  if  he  used  the  property  for  a  different  pur- 
pose than  that  for  which  it  was  bailed,  the  bailee  is  liable.  1  Const.  Rep. 
S.  C.  I2ft  De  ToUenere  v.  Fuller.  See  also  Code  Napoleon,  liv.  3- 
tit.lO.  cl.s.  2.  art.l88l.] 


(i5  THE  LAW  OP  BAILMENTS 

he  cauHOt  exact  the  same  degree  of  management  and 
circumspection,  which  he  would  expect  from  a  riding- 
master,  or  an  officer  of  dragoons. (y) 

From  the  rule,  that  a  borrower  is  answerable  for  slight 
[  66  J  neglect,  compared  with  the  distinction  before  made  be- 
tween simple  theft  and  rohhery,  {z),  it  follows,  that,  if 
the  borrowed  goods  be  stolen  out  of  his  possession  by 
any  person  whatever,  he  must  pay  the  worth  of  them  l» 
the  lender,  unless  he  prove  that  they  were  purloined 
notwithstanding  his  extraordinary  care.  The  example 
given  by  Julian  is  the  first  and  best  that  occurs  :  Caius 
borrows  a  silver  ewer  of  Titius,  and  afterwards  delivers 
it,  that  it  may  be  safely  restored,  to  a  bearer  of  such  ap- 
proved fidelity  and  wariness,  that  no  event  could  be  less 
expected  than  its  being  stolen ;  if,  after  all,  the  bearer 
be  met  in  the  way  by  scoundrels,  who  contrive  to  steal 
it,  Caius  appears  to  be  wholly  blameless,  and  Titius  has 
suffered  damnum  sine  injuria.  It  seems  hardly  necessary 
to  add,  that  the  same  care,  which  the  bailee  is  bound  co 
take  of  the  principal  thing  bailed,  must  be  extended  to 
such  accessory  things  as  belong  to  it,  and  were  delivered 
with  it ;  thus  a  man  who  borrows  a  watch,  is  responsible 
for  slight  neglect  of  the  chain  and  seals, 
opiaion  of  Although   the   laws   of   Rome,   with   which  those  o;. 

ruffendorf         -r^       7       t  .         ,  •  1        1      •  > 

disputed.  hngland  in  this  respect  agree,  most  expressly  decide^ 
that  a  borrower  using  more  than  ordinary  dliii- euce,  sli,ail 
not  he  chargeable,  if  there  be  a  force  which  he  cannot  re- 
sist,{a)  yet  PuFFENDORF  employs  much  idle  reasoning, 
which  I  am  not  idle  enough  to  transcribe,  in  support  of 
r  g7  -1  a  new  opinion,  namely,  "  that  the  borrower  ought  to 
"  indemnify  the  lender,  if  the  goods  lent  be  destroyed 

(y)  Dumoulin,  tract.  De  eo  quod  interest,  n.  185. 

(s)  See  p.  44.  and  note  (o)- 

(a)  D.  44.  7.  I.  4,    Ld.  Raym.  9\e. 


THE  LAW  OF  BAILMENTS.  67 

*'  by  fire,  shipwreck,  or  other  inevitable  accident,  and 
"  without  his  fault,  unless  his  own  perish  with  them ;" 
for  example,  if  Paul  lend  William  a  horse  worth  thirty 
guineas,  to  ride  from  Oxford  to  London^  and  William  be 
attacked  on  a  heath  in  that  road  by  highwaymen,  who 
kill  or  seize  the  horse,  he  is  obliged,  according  to  Puf- 
fcndorf  and  his  annotator,  to  pay  thirty  guineas  td 
Paul.  The  justice  and  good  sense  of  the  contrary 
decision  are  evinced,  beyond  a  doubt,  by  M.  Pothier, 
who  makes  a  distinction  between  those  cases,  where 
the  loan  was  the  occasion  merely  of  damage  to  the 
lender,  who  might  in  the  mean  time  have  sustained 
a  loss  from  other  accidents,  and  those  where  the  loan 
was  the  sole  efficient  cause  of  his  damage(6)  :  as  if 
Paul,  having  lent  his  horse,  should  be  forced,  in  the  in- 
terval, by  some  pressing  business  to  hire  another  for 
himself;  in  this  case  the  borrower  ought,  indeed,  te 
pay  for  the  hired  horse,  unless  the  lender  had  voluntarily 
submitted  to  bear  the  inconvenience  caused  by  the  loan ; 
for,  in  this  sense,  and  in  this  instance,  a  benefit  conferred 
should  not  be  injurious  to  the  benefactor.  As  to  a  condi- 
tion presumed  to  be  imposed  by  the  lender,  that  he  would 
not  abide  by  any  loss  occasioned  by  the  lending,  it  seems 
the  wildest  and  most  unreasonable  of  presumptions  :  if  i  f»o  t 
Paul  really  intended  to  impose  such  a  condition,  he 
should  have  declared  his  mind ;  and  I  persuade  myself, 
that  William  would  have  declined  a  favour  so  hardly 
obtained. 

Had  the  borrower,  indeed,  been  imprudent  enough  to  ^^^^^  ^^^  ^^j^, 
leave   the  high  road,  and  pass  through  some  thicket,  tinctions. 
where  robbers  might  be  supposed  to  lurk,  or  had  he 
travelled  in  the  dark  at  a  very  unseasonable  hour,  and 

{by  Poth.  Pr^t  a  Usage,  n.  55.    Puf.  with  Barbeyrac's  notes,  b.  5,  c.  4> 
§6. 


^  THE  LAW  OF  BAILMENTS. 

had  the  horse,  in  either  case,  been  taken  from  him  or 
killed,  he  must  have  indemnified  the  owner  ;  for  irre- 
sistible force  is  no  excuse,  if  a  man  put  himself  in  the 
way  of  it  by  his  own  rashness.  This  is  nearly  the  case 
cited  by  St.  German  from  the  Summa  Rosella,  where  a 
loan  must  be  meaned,  though  the  word  depositum  be 
erroneously  used  ;(c)  and  it  is  there  decided,  that,  if  the 
borrower  of  a  horse  will  imprudently  ride  by  a  ruinous 
house  in  manifest  danger  of  falling,  and  part  of  it  ac- 
tually fall  on  the  horse's  head,  and  kill  him,  the  lender 
is  entitled  to  the  price  of  him  ;  but  that,  if  the  house 
were  in  good  condition,  and  fell  by  the  violence  of  a  sud- 
den hurricane,  the  bailee  shall  be  discharged.  For  the 
same,  or  a  stronger  reason,  if  William,  instead  of  com- 
ing to  London,  for  which  purpose  the  horse  Avas  lent,  go 
towards  Bath,  or,  having  borrowed  him  for  a  week,  keep 
him  for  a  month,  he  becomes  responsible  for  any  acci- 
dent that  may  befal  the  horse  in  his  journey  to  Bath,  or 
r  g9  -j     after  the  expiration  of  the  week.(^<:/j(2)(L) 

Thus,  if  Charles,  in  a  case  before  put,(f)  wear  the 
masked  habit  and  jewels  of  George  at  the  ball,  for  which 
they  were  borrowed,  and  be  rohhed  of  them  in  his  return 

(c)   Doct.  and  Stud,  where  before  cited. 

(J)  Ld.Raym.  915.  (e)  P.  50. 

(2)  SeeNoy'3  Maxims,  92.  Bythewood's  Ed.  212. 

[(l)  If  a  man  borrow  a  horse  for  one  day,  and  he  keep  him  two,  and 
the  horse  is  lost  on  the  second  day,  the  bailee  is  liable,  for  he  detained 
him  wrongfully.  This  rule,  though  applied  to  a  borrower  is  applicable 
to  bailees  of  every  description.  1  Pow.  on  Con.  249.  Cro.  Ja.  244. 
The  law  of  the  Code  Napoleon,  corresponds  with  this  :  "  Si  I'emprun- 
teur  emploie  la  chose  a  un  autre  usage,  ou  pour  un  temps  plus  lon^ 
qu'il  ne  devait,  il  sera  teniu  de  la  perte  arrivee,  meme  par  cas  forluit." 
Code  Nap.  I.  3.  t.  10.  c.  1.  s.  2.  art.  1881.  And  see  1  Con-  Re.  s.  6.  121. 


THE  LAW  OF  BAILMENTS.  ^ 

home  at  the  usual  time  and  by  the  usual  way,  he  can- 
not be  compelled  to  pay  George  the  value  of  them  ;  but 
it  would  be  otherwise,  if  he  were  to  go  with  the  jewels 
from  the  theatre  to  a  gaming-house,  and  were  there  to 
lose  them  by  any  casualty  whatever.  So,  in  the  in- 
stance proposed  by  Gains  in  the  Digest,  if  silver  utensils 
be  lent  to  a  man  for  the  purpose  of  entertaining  a  party 
of  friends  at  supper  in  the  metroiiolis,  and  he  carry  them 
into  the  country,  there  can  be  no  doubt  of  his  obligation 
to  indemnify  the  lender,  if  the  plate  be  lost  by  accident 
however  irresistible. 

There  are  other  cases,  in  which  a  borrower  is  charge- 
able for  inevitable  mischance,  even  when  he  has  not,  as 
he  legally  may,  taken  the  whole  risk  upon  himself  by 
express  agreement.  For  example,  if  the  house  of  Caius 
be  in  flames,  and  he,  being  able  to  secure  one  thing 
only,  save  an  urn  of  his  own  in  preference  to  the  silver 
ewer,  which  he  had  borrowed  of  Titius,  he  shall  make 
the  lender  a  compensation  for  the  loss  ;(3)  especially  if 
the  ewer  be  the  more  valuable,  and  would  consequently 
have  been  preferred,  had  he  been  owner  of  them  both  : 
even  if  his  urn  be  the  more  precious,  he  must  either 
leave  it,  and  bring  away  the  borrowed  vessel,  or  pay 
Titius  the  value  of  that  which  he  has  lost ;  unless  the  f  70  1 
alarm  was  so  sudden,  and  the  fire  so  violent,  that  no  de- 
liberation  or  selection  could  be  justly  expected,    and 


(3)    Puff.  b.  5.  c  4.  s.  6.     Cod    Nap,  liv.  3.  tit.*  10.  c.  1.  s.  2.  art. 

1882. 


But  wliere  a  slave  was  delivered  to  a  person  to  be  kept  or  upon  trials 
and  the  bailee,  suffered  the  slave  to  go  to  the  next  village  in  the  eve- 
ning,  when  the  slave  ran  away,  it  was  held  that  the  bailee  tvas  not  re- 
sponsible.    De  Fouslear  vs.  Shotterkick  3  v.  Rep.  170  ] 

10 


70  THE  LAW  OF  BAILMENTS. 

Caius  had  time  only  to  snatch  up  the  first  utensil  that 
presented  itself. 

Since  openness  and  honesty  are  the  soul  of  con- 
tracts,(4)  and  since  "  a  suppression  of  truth  is  often  as 
"  culpable  as  an  express  falsehood, "(5)  I  accede  to  the 
opinion  of  M.  Pothicr,  that,  if  a  soldier  were  to  borrow 
a  horse  of  his  friend,  for  a  battle  expected  to  be  fought 
the  next  morning,  and  were  to  conceal  from  hm,  that  his 
ovn  horse  was  as  Jit  for  the  service,  and  if  the  horse  so 
borrowed  were  slain  in  the  engagement,  the  lender  ought 
to  be  indemnified ;  for  probably  the  dissimulation  of  the 
borrower  induced  him  to  lend  the  horse  ;  but,  had  the 
soldier  openly  and  frankly  acknowledged,  that  he   ivas 


(4)  A  seller,  in  disposing-  of  an  article,  is  not  bound  to  disclose  its 
defects  to  the  buyer,  by  the  law  of  England,  which  differs  in  this  re- 
spect from  the  sentiments  of  moral  writers  upon  the  subject  (PufT.  b.  5. 
c-  3.  s.  2.  Grot.  b.  2.  c.  12.  s.  9.  Paley's  Moral  Philos.  vol.  1.  b.  3- 
c.  7. ;)  but  he  must  not  practice  any  artifice  to  conceal  them,  or  make 
any  misrepresentations  for  the  purpose  of  throwing  the  buyer  off  his 
guard.  Baglehole  v.  Walters,  3  Camp.  154.  Meyer  v.  Everth,  4  Camp. 
22.  Pickeringv.  Dowson,4Taun.  779.  Vernon  v.  Keyes,  4  Taun.  488. 
In  such  case  the  maxim,  caveat  emptor,  universallyapplies  where  there 
is  no  fraud  ;  and  to  obtain  protection  from  latent  defects  there  must  be 
an  express  warranty.  Parkinson  v.  Lee,  2  East.  322.  Buller's  Nisi 
Prius,  Bridgeman's  Ed.  32. 

(5)  For  an  illustration  of  this  principle,  see  the  case  of  Eyre  v.  Durn- 
ford,  1  East,  3f8;  where  the  defendant,  who  was  referred  to  upon  the 
subject  of  the  credit  of  a  third  person,  with  whom  the  plaintiff  was  in 
treaty  for  the  purchase  of  a  quantity  of  goods,  having  suppressed  a  ma- 
terial circumstance  within  his  knowledge,  was  holden  liable  for  the  in- 
jury resulting  to  the  plaintiff  in  consequence  of  his  misrepresentation. 
See  Buller's  Nisi  Prius,  Bridgeman's  Ed.  32.  b.  "  Fraud  may  consist 
"  as  well  in  the  sppression  of  what  is  true,  as  in  the  representation  of 
"  what  is  false."  Per  Chanibre,  J.  3  Bos.  and  Pul.  371.  So  in  the 
case  of  a  false  return  to  a  mandamus,  an  action  may  be  maintained,  as 
TTtU  for  a  suppicssio  veri,  as  for  an  aUegafiofalsi.  King  v.  The  Mayor 
aud  Burgesses  of  Lyme  Regis,  1  Douglas,  149. 


THE  LAW  OF  BAILMENTS.  70 

unwl'ling  to  expose  his  own  horse,  since,  in  case  of  a  loss, 
lie  was  unable  to  purchase  another,  and  his  friend,  never- 
theless, had  generously  lent  him  one,  the  lender  would 
have  run,  as  in  other  instances,  the  risk  of  the  day. 

If  the  bailee,  to  use  the  Roman  expression,  be  IN 
MORA,  that  is,  if  a  legal  demand  have  been  made  by  the 
bailor,  he  must  answer  for  any  casualty  that  happens 
after  the  demand  ;  unless  in  cases  where  it  may  be  strong- 
ly presumed,  that  the  same  accident  would  have  befallen 
the  thing  bailed,  even  if  it  had  been  restored  at  the 
proper  time ;  or,  unless  the  bailee,  have  legally  tendered 
the  thing,  and  the  bailor  have  put  himself  in  mor'>  by 
refusing  to  accept  it :  this  rule  extends  of  course  to  eve-  [  71  ] 
ry  species  of  bailment. 

"  Whether  in  the  case  of  a  valued  loan,  or  where  the  Controversy 
goods  lent  are  esttmated  at  a  certain  price,  the  borrow-  viiians. 
"  er  must  be  considered  as  bound  in  all  events  to  restore 
"  either  the  things  lent  or  the  value  of  them,"  is  a  ques- 
tion upon  which  the  civilians  are  as  much  divided,  as 
they  are  upon  the  celebrated  clause  in  the  law  Contrac- 
tus: five  or  six  commentators  of  high  reputation  enter 
the  lists  against  as  many  of  equal  fame,  and  each  side 
displays  great  ingenuity  and  address  in  this  juridical 
tournament.  D'Avezan  supports  the  affirmjitive,  and 
Pothier  the  negative  ;  but  the  second  opinion  seems  the 
more  reasonable.  The  word  periculum,  used  by  Ul~ 
pian,  is  in  itself  equivocal :  it  means  hazard  in  general, 
proceeding  either  from  accident  or  from  neglect ;  and  in 
this  latter  sense  it  appears  to  have  been  taken  by  the 
Roman  lawyer  in  the  passage  which  gave  birth  to  the 
dispute.  But,  whatever  be  the  true  interpretation  of 
that  passage,  I  cannot  satisfy  myself,  that,  either  in  the 
Customary  Provinces  of  France, (6)  or  in  England,  a 


(6)  The  bcrroweria  this  case,  b.y  the  Code  Napoleon,  art.  1883,  is 


71  TPIE  LAW  OF  BAILMENTS. 

borrower  can  be  chargeable  for  all  events  without  his 
consent  unequivocally  given  :  if  William,  indeed,  had  said 
to  Paul  alternatively,    "  1  promise,   on  my  return  to 
"  Oxford,  either  to  restore  your  horse  or  to  pay  you  thirty 
[  72  ]      u  guineas, ^^  he  must  in  all  events  have  performed  one 
part  of  this  disjunctive  obligation  ;(/)  but,  if  Paid  had 
only  said,  "  the  horse,  which  I  lend  you  for  this  journey, 
"  is  fairly  worth  thirty  guineas,"  no  more  could  be  im- 
plied from  those  words,  than  a  design  of  preventing  any 
future  difficulty  about  the  price,  if  the  horse  should  be 
killed  or  injured  through  an  omission  of  that  extraordi- 
nary diligence  which  the  nature  of  the  contract  required. 
Exceptions  to      Besides^jthe  general  exception  to  the  rule  concerning 
the  rule.  jj,g  degrees  of  neglect,  namely,  Si  quid  convenit  vel plus 

vel  minus,  another  is,  where  goods  are  lent  for  a  use,  in 
which  the  lender  has  a  common  interest  with  the  borrow- 
er :  in  this  case,  as  in  other  bailments  reciprocally  ad- 
vantageous, the  bailee  can  be  responsible  for  no  more 
than  ordinary  negligence  ;  as,  if  Stephen  and  Philip  in- 
vite some  common  friends  to  an  entertainment  prepared 
at  their  joint  expense,  for  which  purpose  Philip  lends  a 
service  of  plate  to  his  companion,  who  undertakes  the 
whole  management  of  the  feast,  Stephen  is  obliged  only 
to  take  ordinary  care  of  the  plate  ;  but  this,  in  truth,  is 
rather  the  innominate  contract  do  ut  facias,  than  a  pro- 
per loan. 

Agreeably  to  this  principle,  it  must  be  decided,  that, 
if  goods  be  lent  for  the  sole  advantage  of  the  lender,  the 
borrower  is  answerable  for  gross  neglect  only  :    as,  if  a 

(/)  Palm.  551. 


responsible  for  losses  arising  from  accident,  unless  there  is  an  express 
stipulation  to  the  contrary. 


[73] 


THE  LAW  OF  BAILIMENTS.  73 

passionate  lover  of  music  were  to  lend  lii.s  own  instiii- 
nient  to  a  player  in  a  concert,  merely  to  augment  his 
pleasure  from  the  performance  ;  but  here  again,  the 
bailment  is  not  so  much  a  loan^  as  a  mandate  ;  and,  if 
the  musician  were  to  play  witha  11  due  skill  and  exertion, 
but  were  to  break  or  hurt  the  instrument  without  any 
malice  or  very  culpable  negligence,  he  woikld  not  be 
bound  to  indemnify  the  amateur,  as  he  was  not  in  want 
of  the  instrument,  and  had  no  particular  desire  to  use  it. 
If,  indeed,  a  poor  artist,  having  lost  or  spoiled  his  violin 
or  flute,  be  much  distressed  by  this  loss  ;  and  a  brother 
musician  obligingly,  though  voluntarily,  offer  to  lend  hira 
his  own,  I  cannot  agree  with  Despeisses,  a  learned 
advocate  of  Montpelkr,  and  writer  on  Roman  law,  that 
the  player  may  be  less  careful  of  it  than  any  otficr  bor- 
rower :  on  the  contrary,  he  is  bound  in  conscience  at 
least,  to  raise  his  attention,  even  to  a  higher  degree  ? 
and  his  negligence  ought  to  be  construed  with  rigour. 

By  the  law  of  Moses,  as  it  is  commonly  translated,  a  ^^o^^ic  and 

•  .        .  "^  '       AUic  laws. 

remarkable  distmction  was  made  betAveen  the  loss  of 
borrowed  cattle  or  goods,  happening  in  the  absence  or 
the  presence  of  the  owner(7)  ;  for,  says  tlje  divine  le- 
gislator, "if  a  man  borrow  anght  of  his  neighbour,  and 
"  it  be  hurt  or  die,  the  oivner  thereof  not  being  iv-ith  it, 
"  he  shall  surely  make  it  good  ;  but  if  the  oumer  thereof 
*'  be  with  it,  he  shall  not  make  it  good  ;"(,§•)  now  it  it  is  by 

nomeanscer/'am,  that  the  original  word  signifies  the  owner,-     f  74  1 
for  it  may  signify  the  possessor,   and  the  law  may  import, 
that  the  borrower  ought  not  to  lose  sight,  when  he  can 
possibly  avoid  it,  of  the  thing  borrowed  ;  but  if  it  was 

(g)  Exod.  xxii.  14, 15. 


(7)  See  Puff,  with  Barbeyrac's  notes,  b.  5.  c-  4.  s.  6.  n.  2. 


74 


THE  LAW  OF  BAILMENTS. 


[75] 

Law  ot 
pledges. 


Doctrine  of 
Lord  Coke 
denied. 


intended  that  the  borrower  should  ahvays  answer  for 
casualties,  except  in  the  case,  which  must  rarely  happen, 
of  the  owner's  presence^  this  exception  seems  to  prove, 
that  no  casualties  were  meaned,  but  such  as  extraordina- 
ry care  might  have  prevented  ;  for  I  cannot  see,  what 
difference  could  be  made  by  the  presence  of  the  owner, 
if  the  for(^,  productive  of  the  injiiry,  were  wholly  irre- 
sistible, or  the  accident  inevitable. 

An  old  Athenian  law  is  preserved  by  Demosthenes, 
from  which  little  can  be  gathered  on  account  of  its  gene- 
rality, and  the  use  of  an  ambiguous  word  (A) :  it  is  un- 
derstood by  Petit ^^  relating  to  guardians,  mandataries, 
and  commissioners  ;  and  it  is  cited  by  the  orator  in  the 
case  of  a  guardianship.  The  Athenians  were,  probably, 
satisfied  with  speaking  very  generally  in  their  laws,  and 
left  their  juries,  for  juries  they  certainly  had,  to  decide 
iavourably  or  severely,  according  to  the  circumstances  of 
each  particular  case. 

IV.  As  to  the  degree  of  diligence  which  the  law  re- 
quires from  a  pawnee,  I  find  myself  again  obliged  to  dis- 
sent from  Sir  Edward  CoJce,  with  whose  opinion  a  simi- 
lar liberty  has  before  been  taken  in  regard  to  a  depositor- 
ry  ;  for  that  very  learned  man  lays  it  down,  that,  "if 
"  goods  be  delivered  to  one  as  a  gage  or  pledge,  and  they 
"  be  stolen,  he  shall  be  discharged,  because  he  hath  a 
'^property  in  them:  and,  therefore,  he  ought  to  keep 
/'  them  no  otherwise  than  his  own(i) :"  I  deny  the  first 
proposition,  the  reason,  and  the  conclusion. 

(/i)  Ilfpi  b>v  Ka9v(}>T]Ki  nj,  i/iOia)j  dipXtcKdvciv,  SxTTztp  itv  avToi  cxJi,  Reiske'  Sedi- 
tion, 855.  3.  Here  the  verb  Kadvfiivai  may  imply  slight,  or  ordinary, 
neglect:  or  even  fraud,  as  Petit  has  rendered  it. 

(i)  Inst.  89.  a.  4.  Rep.  83.  b.  (8). 


(8)  See  Hargravc's  note  (10)  upon  the  above  passage,  where  the 


THE  LAW  OF  BAILMENTS.  75 

Since  the  bailment,  which  is  the  subject  of  the  pre- 
sent article,  is  beneficial  to  the  paivnee  by  securing  the 
payment  of  his  debt,  and  to  the  pawnor  by  procuring  him 
credit,  the  rule  which  natural  reason  prescribes,  and 
which  the  wisdom  of  nations  has  confirmed,  makes  it  re- 
quisite for  the  person  to  whom  a  gage  or  pledge  is  bailed, 
to  take  ordinary  care  of  it ;  and  he  must  consequently 
be  responsible  for  ordinary  neg\ect.{k)  This  is  express- 
ly holdenby  Bracton  ;  and,  when  I  rely  on  his  authori- 
ty, I  am  perfectly  aware  that  he  copied  Justinian  almost 
Avord  for  word,  and  that  Lord  Holt,  who  makes  considera- 
ble use  of  his  Treatise,  observes  three  or  four  times, 
"that  he  was  an  old  author  ;"(Z)  but,  although  he  had 

(it)  Bract.  99.  b.  (/)  Ld.  Raym.  915,  916.  919. 


learned  editor,  adverting  to  the  authority  of  Lord  C.  J.  Holt,  who 
thought  the  reasoning  in  the  text  insufficient,  also  objects  to  the  doc- 
trine there  stated.  The  nature  and  object  of  this  species  of  bailment, 
entitles  the  pawnee  to  detain  the  article,  until  he  is  repaid  the  sum  ad- 
vanced upon  it ;  but  it  may  be  observed,  that  where  goods  have  been 
pledged  by  a  person  having  a  limited  interest,  the  pawnee  cannot  de- 
tain them  for  the  sum  advanced,  against  the  party  entitled  to  it  after 
that  interest  has  expired.  As  where  a  tenant  for  life  of  plate,  pledged 
it  with  a  pawnbroker,  who  had  no  notice  of  the  settlement  under  whick 
the  interest  was  derived  ;  the  pawnbroker  was  not  allowed  to  retain 
the  property,  after  the  death  of  the  tenant  for  life,  against  the  remain- 
der man,  notwithstanding  his  ignoraxice  of  the  pawnor's  partial  inter- 
est. Hoare  v.  Parke,  2  T.  R.  376.  See  16  Viner's  Abr.  title  Pawn. 
264.  Hooper  v.  Ramsbottom,  4  Camp.  121.  M'Combie  v.  Davies, 
7  East,  5.  So  where  a  factor  pledges  the  goods  of  his  principal  with- 
out authority,  the  pawnee  cannot  detain  them  against  the  principal,  un- 
til he  is  repaid  the  sum  advanced.  Paterson  v.  Tash,  2  Sir.  1178.  Dau- 
bigny  V.  Duval,  5  T.  R.  604.  M'Combie  v.  Davies,  6  East,  538.  Mar- 
tini V.  Coles,  1  M.  and  S.  140.  Shipley  v.  Kymer,  1  M.  and  S.  484. 
Kuckein  v.  Wdson,  4  B.  and  A.  443.  not  even  to  the  extent  of  the  loan, 
which  the  factor  would  be  entitled  to,  had  they  remained  in  his  posses- 
sion.    M'Combie  y.  Davies,  7  East.  6. 


76  THE  LAW  OF  BAILME^^TS. 

been  a  civilian,  yet  he  was  also  a  great  common-lawyer, 
and  never,  I  believe,  adopted  the  rules  arid  expressions 
of  the  Romans,  except  when  they  coincided  with  the  laws 
of  England  in  his  time  :  he  is  certainly  the  best  of  om*  juri- 
dical classics  ;  and,  as  to  our  ancient  authors,  if  their  doc- 
trine be  7iot  law,  it  must  be  left  to  mere  historians  and  an- 
tiquaries ;  but,  if  it  remain  unimpeached  by  any  later 
decision,  it  is  not  only  equally  binding  with  the  most  re- 
cent law,  but  has  the  advantage  of  being  matured  and 
approved  by  the  collected  sagacity  and  experience  of 
ages.  The  doctrine  in  question  has  the  full  assent  of 
Lord  Holt  himself,  who  declares  it  to  be  "  sufficient,  if 
"the  pawnee  use  true  and  ordinary  diligence  for  restoring 
"  the  goods,  and  that,  so  doing,  he  will  be  ifidemnified, 
"  and,  notwithstanding  the  loss,  shall  resort  to  the  paw- 
"  nor  for  his  debt. "(9)  Now,  it  has  been  proved,  that 
"  a  bailee  cannot  be  considered  as  using  ordinary  dili- 
"  gcjicc  who  suffers  "the  goods  bailed  to  be  taken  by 
"  stealth  out  of  his  custody  ;"(w)  and  it  follows,  that 
"  a  pawnee  shall  not  be  discharged,  if  the  pawn  be 
simply  stolen  from  him  ;"(1)  but  if  he  bo  forcibly  robbed 
of  it  ivithout  his  fault,  his  debt  shall  not  be  extinguished. 

(m)  P.  44.  n.  (o). 

(9)  Ld.  Raym.  917. 

(1)  A  pawnee,  and  a  depositary  of  g-oo^s  for  bire,  are  responsible  for 
tlte  same  degree  of  negligence,  that  is,  for  the  want  of  ordinary  care; 
but  where  a'truuk,  containing  goods,  was  deposited  jvith  an  upholsterer 
for  a  reu'ard,  the  contents  of  which  were  stolen  by  his  servants  not- 
withstanding he  had  put  it  in  a  place  of  safe  custody,  he  was  holden 
not  responsible  for  the  value,  since  he  had  taken  as  much  care  of  them 
as  of  his  own,  and  that  positive  evidence  of  negligence  must  be  given  to 
•i  sustain  such  an  action.  The  mere  proof  that  at  different  times  seve- 
ral articles  of  value  had  been  stolen  from  the  defendant,  and  that  he 
had  frequently  been  heard  to  complain  of  (he  dislionesty  of  his  servants, 
is  not  sufficient.  Finucaue  v.  Small,  1  Esp.  N-  P.  G.  315.    The  distinct 


THE   LAW  Of  BAILMENTS.  76 

/ 

The  passage  in  the  Roman  institutes,  which  Bracion 
has  nearly  transcribed,  by  no  means  convinces  M.  Le 
Brun,  that  a  puivnee  and  a  borroiver  are  not  responsible  [  77  ] 
for  one  and  the  same  degree  of  negligence  ;  and  it  is  very 
certain  that  Ulpian,  speaking  of  the  Actio  jpignoratiUa, 
uses  these  remarkable  words  :  "  Venit  in  hac  actione  et 
*'  dolus  et  culjpa  UT  in  commodato,  venit  et  custodia;  vis 
"  major  non  venit."  To  solve  this  difficulty  Noodt  had  StTdsmTf 
recourse  to  a  conjectural  emendation,  and  su})poses  UT  N«odt. 
to  have  been  inadverdently  written  for  at  ;  but  if  this 
was  a  mistake,  it  must  have  been  pretty  ancient,  for  the 
Greek  translators  of  this  sentence  use  a  particle  of  si- 
militude, not  an  adversative  ;  there  seems,  however,  no 
occasion  for  so  hazardous  a  mode  of  criticism.  Ulpian 
has  not  said,  "  tolls  culpa  qualis  in  commodato  ;  nor 
does  the  word  ut  imply  an  exact  resemblance  :  he  mean- 
ed,  that  a  pawnee  was  answerable  for  neglect,  and  gave 
the  first  instance  that  occurred  of  another  contract,  in 
which  the  party  was  likewise  answerable  for  neglect,  but 
left  the  sort  or  degree  of  negligence  to  be  determined  by 
his  general  rule  ;  conformably  to  whieh  he  himself  ex- 
pressly mentions  pignus  among  other  contracts  recipro- 
cally useful,  and  distinguishes  it  from  commodatum, 
whence  the  borrower  solely  derives  advantage.(/i.) 

(»i)  Before,  p.  16. 

tion  between  a  theft  and  robbery  is  clearly  established  in  the  civil  law. 
D-  17.2.  52.  3.    See  Abbott  on  Shipping,  234.  n.  1.  Ante  p.  44.  n.{o)[m) 

[(m)  The  rule  laid  down  by  Sir  William  Jones  in  the  text,  viz.  -  that 
"  if  the  goods  are  stolen  the  pawnee  shall  not  be  discharged,"  does  not 
appear  to  be  the  correct  rule  ;  neither  is  the  reverse  of  the  proposition 
as  laid  down  by  Ld.  Coke  correct.  But  the  true  rule  is  :  that  if  the  goods 
are  stolen  through  the  want  of  ordinary  care  in  the  pawnee,  he  is  liable, 
otherwise  he  is  not.  Salk.  522.  Ld.  Ray.  917,  13.  Civil  Code  of  Louisia- 
na, 446— 45Q.  1  Pow.  on  Cont.  252.] 

11 


77  THE  LAW    OF  BAiLMENTi^. 

Case  in  the  It  is  latlier  less  easy  to  answer  the  case  in  the  Book 

Book  of  Assise      .     ^     •  ,  •   i 

ot  Assise,  which  seems  wholly  subversive  of  my  reason- 
ing, and,  if  it  stand  unexplained,  Avill  break  the  harmo- 
[  "78  j  ny  of  my  system  ;(o)  for  there,  in  an  action  of  detinue 
for  a  hamper,  which  had  been  bailed  by  the  plaintiff  to 
the  defendant,  the  bailee  pleaded,  "  that  it  was  delivered 
*'  to  him  in  gage  for  a  certain  sum  of  money  ;  that  he 
"had  put  it  among  his  other  goods ;  and  that  all  to- 
*'  gether  had  been  stolen  from  him  :"  now,  according  to 
my  doctrine,  the  plaintiff  might  have  demurred  to  the 
plea;  but  he  was  driven  to  reply,  "that  he  tendered  the 
"  money  before  the  stealing,  and  that  the  creditor  re- 
"  fused  to  accept  it,"  on  which  fact  issue  was  joined; 
and  the  reason  assigned  by  the  Chief  Justice  was,  that, 
"  if  a  man  bail  goods  to  me  to  keep,  and  I  put  them 
"  among  my  own,  I  shall  not  be  charged  if  they  be 
"  stolen.''^  To  this  case  I  answer:  first,  that  if  the 
court  really  made  no  difference  between  a  pawnee  and  a 
depositary ,  they  were  indubitably  mistaken  ;  for  which 
assertion  I  have  the  authority  of  Bracton,  Lord  Holt, 
and  St.  German,  who  ranks  the  taker  of  a  pledge  in  the 
same  class  with  a  'hirer  of  goods  ;(p)  next,  that  in  a 
much  later  case,  iii  the  reign  of  Hen.  VI.  where  a  hiring 
of  custody  seems  to  be  meaned,  the  distinction  between 
a  theft  and  a  robbery  is  taken  agreeably  to  the  Roman 
law(5')  ;  and,  lastly,  that,  although  in  the  strict  propriety 
of  our  English  language,  to  steal  is  to  take  clandestinely, 
and  to  rob  is  to  seize  by  violence,  corresponding  with  the 
'-  '  iVorwif/M  verbs  emblcer  and  robber,  yet  those  words  arc 
sometimes  used  inaccurately ;  and  I  always  suspected, 
that  the  case  in  the  Book  of  Assise  related  to  a  robbery. 

(o)  29  Ass.  pi.  28. 

ip)  Uoct.  and  Sdid.  dial.  2.  chap,  38. 

(Q)  Before,  p.  44.  note.(o) 


THE  LAW  0F  BAILMENTS.  79 

or  a  taking  with  force  ;  a  suspicion  confirmed  beyond  any 
doubt  by  the  judicious  Broolc,  who  abridges  this  very 
case  with  the  following  title  in  the  margin,  "  Que  serra 
"  al  perde,  quant  les  biens  sont  rohbes;''\r)  and  in  a  mo- 
dern work,  where  the  old  cases  are  referred  to,  it  ap- 
pears to  have  been  settled  in  conformity  to  them  and  to 
reason,  "that  if  the  pawn  be  laid  up,  and  the  pawnee 
be  robbed,  he  shall  not  be  answerable:" (a)  but  Lord 
Coke  seems  to  have  used  the  word  stolen  in  its  proper 
sense,  because  he  plainly  compares  a  pawn  with  a  de- 
posit. 

If,  indeed,  the  thing  pledged  be  taken  openly  and  vio- 
lently through  the  fault  of  jthe  pledgee,  he  shall  be  re- 
sponsible for  it;  and,  after  a  tender  axvA  refusal  o^  i\\e 
money  owed,  which  are  equivalent  to  actual  payment, 
the  U'hole  property  is  instantly  revested  in  the  pledgor,  and 
he  may  consequently  maintain  an  action  of  trover  :(2^)(n) 
it  is  said  in  a  most  useful  work,  that  by  such  tender  and 
refusal  the  thing  pawned  "  ceases  to  be  a  pledge,  and 
becomes  a  deposit  ;"(w)  but  this  must  be  an  error  of  im 
pression ;  for  there  can  never  be  a  deposit  without  the 
owner's  consent,  and  a,  depositary  would  be  chargeable 
only  for  gross  negligence,  whereas  the  pawnee,  whose     i   gQ  t 

f   (r)  Abr.  tit.  Bailment,  pi.  7. 

(s)  2  Salk.  522.  (/)  29  Ass.  pi.  28.     Yelv.  179.     Ratcliff  and  Davis. 

(m)  Law  of  Nisi  Priss,  72.  {2) 

(2)  In  the  subsequent  editions  of  tliat  work,  the  words  "  andbecomes 
"  a  deposW  are  omitted. 

[(n)  It  is  laid  down  by  Holt  in  2  Salk  522.  That  if  a  pawnbroker  re- 
fuse upon  tender  of  the  money  to  rc-deliverihe  goods  pledged,  he  may 
be  indicted;  for  being  secretly  pawned,  it  may  be  impossible  to  prove 
a  delivery  in  trover  for  want  of  witnesses.  This  appears  to  beihe  bet- 
ter opinion,  though  it  is  made  a  quere,  in  some  of  (he  books.  See  Carth 
Rep.  277.  Salk.  309. 1  Hawk.  Tl.  of  Cr.  Garwood's  Edit.  14-1.1  Dane  Abr, 
fl05.  1  Bac.abr.  373.] 


80  THE  LAW  OF  BAILMENTS. 

special  property  is  determined  by  the  wrongful  detainer, 
becomes  liable  in  all  possible  events  to  make  good  the 
thing  lost,  or  to  relinquish  his  debt.(w)(o) 

{w)  Ld.  Raym.9l7. 


[(o)  As  to  rights  of  the  Pawnee.  1.  The  Pawnee  may  maintain  his 
action  of  debt  for  the  money  lent,  although  the  pawn  remains  in  his 
hands,  for  the  pawn  is  a  mere  collateral  securitv,  and  the  right  of  ac- 
tion is  not  suspended  by  it.  Yelv.  178.  Vide  12  Mod.  564.  2  Starkie 
Eep.  72.    2  Stra.  919. 

So  he  may  maintain  an  action  of  debt  for  his  money,  though  the  goods 
pledged  may  have  been  recovered  from  him  by  the  pawnor  in  an  action 
of  trover ;  because,  though  the  security  ceases,  yet  the  duty  remains, 
inasmuch  as  the  money  lent  is  not  paid  tiack  to  the  party  from  whenc 
it  came.  Cro.  Ja.  243.  1  Bac.  Abr.  370.  But  where  a  tender  has  been 
made  to  the  pawnee,  and  he  has  refused  to  accept  it,  he  should  demand 
the  money  before  he  brings  his  action.  1  Bac.  Abr.  370.  Buls.  Rep.  29. 
31. 

If  A.  pawn  goods  to  B.  for  25/.  and  B.  delivers  them  over  to  C.  and 
makes  D.  his  Executor  and  dies,  A.  shall  tender  the  25/.  to  the  execu- 
tor, and  not  to  C,  for  C.  is  no  more  than  a  bailee,  and  hath  only  the 
custody  of  them;  but  the  qualified  property  of  them  is  in  D.  as  repre- 
sentative of  B.  and  therefore  to  him  must  the  tender  be  made  ;  other- 
wise it  is,- in  the  case  of  a  mortgage,  where  the  tender  may  be  to  the 
assignee,  because  the  property  of  the  land  is  in  him.  Cro.  Ja.  244- 
Yelv.  178,  179.  1  Bac.  Abr.  370. 

The  goods  taken  to  pledge  cannot  be  forfeited  by  the  pawnbroker 
for  his  offence,  nor  can  they  be  taken  in  execution,  nor  attached  for 
bis  debt,  for  the  absolute  properly  is  in  another,  and  therefore  they  are 
not  alienable,  nor  by  consequence  forfeitable,  because  they  cannot  be 
forfeited  without  loss  and  danger  to  the  absolute  owner,  and  all  qualifi- 
ed possessors  take  the  thing,  under  the  restriction  to  preserve  it  for  the 
right  owner.  Dyer  67.  b.  Owen  124.  1  Bac.  Abr.  370.  ]  Dane  Abr.  305 
If  the  money  was  not  paid  at  the  day,  the  property  became  absolute  at 
law,  in  the  pawnee,  but  still  the  right  owner  has  his  redemption  in  equi- 
ty, as  in  the  case  of  a  mortgage,  and  he  may  recover  it  by  paying  the 
debt  and  interest,  but  if  the  pawnee  has  sold  it  he  cannot  be  compelled 
tore-purchase  it.  Shep.  Touch.  106.  1  Inst.  205.  3  Atk.  395.  1  Dane 
Abr.  306.  art-  4.  s.  4 

See  further  as  to  the  right  and  property  of  the  pledgee  in  the  thing 


THE  LAW  OF  BAILMENTS.  80 


reasons  coii- 


The  reason  given  by  Coke  for  his  doctrine,  namely,  Lord  Coke's 
' '  because   the    pawnee   has   a  property   in   the  goods  tested. 
"  pledged,"  is  applicable  to  every  other  sort  of  bail- 
ment,   and  proves  nothing  in  regard  to  any  particular 
species  ;  for  every  bailee  has  a  temporary  quaUfied  pro- 


pledged,15  Mass.  Rep.  389.  Jarvis  v.  Rodgers,  13  Ibid.  105.  Garlick  v. 
James,  12  Johns.  Rep.  146. 

Lien. — Pawnee's  ri^ht  of  Lien — Pawning,  in  itself,  creates  a  right  ot' 
lien.  And  the  pawnee  has  a  right  to  retain  the  pledge,  not  only  as  a 
security  for  the  money  lent  upon  it,  but  also  for  any  other  money  lent 
to  the  pawnor,  or  debt  incurred  by  him  to'the  pawnee,  since  the  pawn- 
ee's possession  of  the  pawn.  Prec  in  Chan.  419.  2  Vern.  Rep.  691.  De- 
maubray  v.  Metcalfe,  1  Dan-  Abr.  306. 

By  the  civil  law  the  pawnee  might  always  retain  the  pledge  not  only 
for  the  sum  for  which  it  was  specifically  pledged  but  for  all  other  mo. 
nies  due  to  him  on  any  account  whatever.  Cod.  8.  27.  Hein.  Elem. 
Juris,  p.  4.  s.  46.  Bu).  Praec.  lib.  20  tit.  B.  s.  1. 

It  does  not  appear  to  be  settled  whether,  by  the  Common  Law,  the 
pawnee  has  a  right  to  retain  the  pawn  for  a  debt  due  him  previous  to 
his  obtaining  the  possession  of  the  pawn.  15  Mass.  Rep.  397 ;  opinioa 
of  Wilde,  Just. 

But  though  the  pawning  creates  a  lien  in  favour  of  the  pawnee, 
he  cannot  have  more  interest  in  the  thing  pledged  than  the  pawnor 
had.  As  if  the  tenant  of  plate  for  life,  pawn  it  to  a  broker  and  die, 
and  he  have  no  notice  of  the  pawnor's  property,  the  pawnee  has  no  lien 
on  the  plate  as  against  him  in  remainder.  2  Term  Rep.  376.  Hoare 
v.  Parker  lane     Abr.  306. 

Yet  it  has  been  decided  that  if  A.  gets  my  goods  by  fraud,  and 
pawns  them  to  B.  an  innocent  person,  and  for  a  valuable  considera- 
tion, I  cannot  recover  them  of  B.  till  his  debt  is  paid.  5  Term  Rep. 
175.  Parker  V.  Patrick,  1  Dane  Abr.  306.  See  on  the  subject  of  Zzen 
generally,  2  Dane.  Abr.  262—283. 

Redemption. — Paionor'^s  right  of  redemption.  Where  no  time  o^ 
redemption  is  fixed,  the  pawnor  has  his  life  to  redeem  the  pledge  ;  but 
this  is  to  be  understood  with  this  qualification,  that  the  pawnee  does 
not  sooner  call  on  him  to  redeem,  which  he  certainly  has  a  right  to  do. 
Before  making  such  call,  the  pawnee  has  no  right  to  sell  the  pledge ; 
and  if  he  does,  the  pawnor  may  recover,  from  him  the  value  of  it  at 


80  THE  LAW  OF  BAILMENTS; 

perty  in  the  things  of  which  possession  is  delivered  to  him 
by  the  bailor,  and  has,  therefore,  a  possessory  action,  (3) 


(3)  A  gratuitous  bailee  may  maintain  an  action  in  his  oivu  name,  for 
an  injury  occasioned  by  that  degree  of  gross  negligence  which  rfcnders 
him  responsible  to  his  bailor  ;  as  where  he  turns  a  horse  after  dark  into 
a  strange  pasture,  which  through  a  defect  in  the  fences,  which  his 
neighbour  is  bound  to  repair,  falls  into  the  adjoining  close,  and  is  killed, 
Roothv.  Wilson,  1  Barn,  and  Aid.  59.  See  ante,  p.  53.  n.  1.  S),  a  per- 
son who  hires  a  chariot  for  the  day.  and  furnishes  it  with  a  coachman 
and  horses,  and  then  lets  it  out  for  the  day,  may  sue  in  hi-  own  name, 
for  an  injury  to  the  chariot  whilst  in  the  use  of  the  person  to  whom  he 
had  let  it,  and  may  properly  describe  himself  as  the  owner  an  ]  pro- 
prietor.    Croft  V.  Alison,  4  Barn,  and  Aid.  590. 

A  gratuitous  permission  to  another  to  use  a  chattel  does  not,  in  con- 
templation of  law  devest  the  owner  of  the  possession  but  it  remains 
constructively  in  him,  and  accordingly  he  may  maintain  an  action  of 
trespass  for  an  injury  done  to  it  whiht  it  is  so  used.  Lotan  v.  Cross,  2 
Camp.  464.  But  the  hirer  for  a  different  period,  acquires  an  actual 
and  exclusive  possession  for  that  time,  and  the  owner  has  only  a  rever- 
sionary interest  in  the  property  hired,  and  consequently  cannot  main- 
tain an  action  of  trespass  for  an  injury  to  it;  his  remedy  must  be  an  ac- 
tion upon  the  case.  Hall  v.  Pickard,  3  Camp.  187.  See  Gordon  v.  Har- 
per, 7  T.  R.  9. 

the  time  of  applying  for  a  return,  without  tendering  the  debt,  because 
by  the  wrongful  sale,  the  pawnee  has  incapacitated  himself  to  perform 
his  part  of  the  contract  to  return  the  pledge,  and  it  would  therefore  be 
nugatory  to  make  the  tender.  Cortelyou  v.  Lansing,  2  Cain.  Ca.  in. 
Er.  199.  McLean  &  Perrine  v.  Walker,  10  Johns.  Rep.  472.  Kemp 
V.  Westbrook,  1  Vez.  sen.  278,  Where  the  pledge  is  for  an  indefinite 
period,  the  pawnor  should  be  called  on  to  redeem,  before  the  pawnee 
can  dispose  of  the  property ;  and  if  he  is  absent,  or  cannot  be  found, 
judicial  proceedings  should  be  had  to  bar  his  redemption.  Garlick  v. 
James,  12  Johns.  Rep.  146.     Hart  v.  Ten  Eyck,  2  Johns.  C.  R.  100. 

Though  the  pawnor  does  not  redeem  during  his  life,  yet  the  right  of 
redemption  descends  to  his  executors,  who  may  redeem  after  his 
death.  Cortelyou  v.  Lansing,  2  Cain.  Ca.  in.  Er.  199.  Bui.  29.30. 
1  Bac.  Abr.  372. 

Where  no  time  is  limited  for  the  redemption  of  the  pledge,  the 
Statute  of  Limitations  will  not  attach.  1  Vez.  sen.  g78.  Kemp.  v. 
Westbrook. 


THE  LAW  OF  BAILMENTS.  80 

©r  an  appeal  in  his  own  name  against  any  stranger  who 
may  damage  or  purloin  them.(x)  By  the  Roman  law, 
indeed,    "  even  the  possession  of  the  depositary  was 

(x)  Year  B.  21  Hen.  VII.  14.  b.  15.  a. 


And  if  the  pledgee  becomes  bankrupt,  his  assignee  may  file  a  bill 
in  Chancery  for  the  redemption  of  the  pledge-  for,  being  a  stranger 
to  what  is  due,  he  cannot  otherwise  ascertain  the  precise  sum  he  is  to 
tender.     Ibid.  1  Bac  Abr.  372. 

Where  property  is  held  under  a  pledge,  the  possession  of  the  bailee 
is  the  possession  of  the  owner;  and  if  he  sell  to  a  third  person,  and 
the  bailee  will  not  give  up  the  property  to  the  vendee  on  being  tendered 
the  amount  of  the  debt,  or  conceal  the  precise  amount,  so  that  no 
precise  tender  can  be  made,  it  is  suflBcient  evidence  of  a  conversion  to 
sustain  the  action  of  trover  by  the  vendee.  Eatcliff  v.  Vance,  2  Con. 
Hep.  S.  C.  239. 

Assignment  of  Pawn-  Some  have  holden,  that  upon  a  valuable  con- 
sideration a  pledge  is  assignable  over;  and  that  on  such  assignment  the 
tender  of  the  money  to  the  pledgor  must  be  to  the  assignee,  because 
the  pawnbroker  hath  a  special  property,  and  what  he  hath  he  may 
transfer  over.  Bulst-  31.   Owen  124.  1  Bac.  Abr.  372. 

But  if  a  thing  is  not  in  my  possession,  I  cannot  grant  it  as  a  pawn, 
though  I  have  a  right  to  it ;  for  a  naked  right  is  not  transferrable  over. 
2  Rol.  Rep.  439.  I  Bac  Abr.  372.  See  also  RatclifT  v.  Vance,  2 
Con.  Rep.  of  S.  C   239. 

Of  Pawns  by  Agents  and  Factors.  A  factor  halh  no  authority  to 
pledge  the  goods  of  his  principal ;  and  if  he  do,  the  latter  may  recover 
the  value  of  them  from  the  pawnee,  on  tendering  to  the  factor  what  is 
due  to  him,  without  any  tender  to  the  pawnee.  Patterson  v.  Tash,  2 
Stra.  1178.     Daubigny  v.  Duval,  5  Term.  Rep.  604. 

But  in  the  case  of  Daubigny  v.  Duval,  above  cited,  Ld.  Kenyon 
thought  that  the  principal  was  bound  to  make  tender  to  the  pawnee  to 
the  extent  of  the  money  due  from  the  principal  to  the  factor,  though 
not  beyond  that  sum. 

An  agent,  to  whom  a  power  of  attorney  is  given  to  sell,  assign,  and 
transfer  stock,  cannot  pledge  it  for  his  own  debt;  if  he  does.  Chancery 
will  order  the  pledgee  to  re-transfer  it.  It  is  a  principle  of  the  law  of 
England,  as  well  as  of  the  civil  law,  that  if  a  person  is  acting  ex  man- 
data^  those  dealing  with  him  must  look  to  his  authoritv. 


80  THE  LAW  OF  BAILMENTS. 

"  holden  to  be  that  of  the  person  depositing  ;"  but  with 
us  the  general  bailee  has  unquestionably  a  limited  pro- 
perty in  the  goods  intrusted  to  his  care  :  he  may  not  how- 
ever me  them  on  any  account  without  the  consent  of 
the  owner,  either  expressly  given,  if  it  can  possibly  be 
obtained,  or  at  least  strongly  presumed  ;(p)  and  this  pre- 
sumption varies,  as  the  thing  is  likely  to  be  better,  or 
Avorse,  or  not  at  all  affected,  by  usage  ;  since,  if  Cuius 
deposit  a  setting-dog  with  Titius,  he  can  hardly  be 
supposed  unwilling  that  the  dog  should  be  used  for 
L  ^1  J  partridge-shooting,  and  thus  be  confirmed  in  those 
habits  which  make  him  valuable ;  but,  if  clothes  or 
linen  be  deposited  by  him,  one  can  scarce  imagine  that 
he  would  suffer  them  to  be  worn;  and  on  the  other 
hand,  it  may  justly  be  inferred,  that  he  would  gladly 
indulge  Titius  in  the  liberty  of  using  the  booTcs  of  which 
^  he  had  the  custody,   since  even  moderate  care  would 

prevent  them  from  being  injured.  In  the  same  manner 
it  has  been  holden,  that  the  pawnee  of  goods,  which  will 
be  impaired  by  usage,  cannot  use  them ;  but  it  would 
be  otherw  ise,  f  apprehend,  if  the  things  pawned  actually 
required  exercise  and  a  continuance  of  habits,  as  sport- 
ing-dogs and  horses  :  if  they  cannot  be  hurt  by  being- 
worn,  they  may  be  used,  but  at  the  peril  of  the  pledgee  ; 
as,  if  chains  of  gold,  ear-rings,  or  bracelets,  be  left  in 


[  ( p)  If  the  pawnee  use  the  pledge  where  the  law  docs  not  permit  him 
to  use  it,  he  uses  it  at  his  peril,  and  is  liable  not  only  for  all  losses  during 
that  use,  but  is  also  guilty  of  a  conversiou.  1  Leon.  224.  Cro.  Eliz. 
219.  6   Bac  Abr.  680. 

IV'here  property  is  bailed  for  a  particular  purpose,  if  it  be  used  for  a 
different  purpose,  and  a  loss  happens,  the  bailee  is  liable,  even  if  it 
appears  that  he  has  used  due  care  and  attention  ;  the  legal  presump- 
tion being  that  the  loss  happened  in  consequence  of  the  misuse.  De 
Tollemere  v.  Fuller,  I  Rep.  Con.  Ct  121  ■] 


THE  LAW  OF  BAILMENTS,  81 

pawn  with  a  lady,  and  she  wear  them  at  a  public  place, 
and  be  robbed  of  them  on  her  return,  she  must  make 
them  good:  "  if  she  keep  them  in  a  bag,"  says  a  learned 
and  respectable  writer,  "  and  they  are  stolen,  she  shall 
"  not  be  charged  ;"(y)  but  the  bag  could  hardly  be  taken 
privately  and  quietly  without  her  omission  of  ordinary 
diligence ;  and  the  manner  in  which  Lord  Holt  puts  the 
case  establishes  my  system,  and  confirms  the  answer  just 
offered  to  the  case  from  the  Year-book  ;  for,  "  if  she 
"*'  keep  the  jewels,"  says  he,  "  locked  up  in  her  cabinet, 
*'  and  her  cabinet  be  broken  open,  and  the  jewels  taken 
**  thence,  she  will  not  be  answerable."(z)  Again ;  it  is  [  82  1 
said,  that,  where  the  pawnee  is  at  any  expense  to  main- 
tain the  thing  given  in  pledge,  as,  if  it  be  a  horse  or  a 
cow,  he  may  ride  the  horse  moderately,  and  milk  the 
eow  regularly,  by  way  of  compensation  for  the  charge  ;(a) 
and  this  doctrine  must  be  equally  applicable  to  a  gene- 
ral bailee,  who  ought  neither  to  be  injured  or  benefited 
in  any  respect  by  the  trust  undertaken  by  him  ;  but  the 
Roman  and  French  law,  more  agreeably  to  principle 
and  analogy,  permits  indeed  both  the  pawnee  and  the 
depositary  to  milk  the  cows  delivered  to  them,  but  re- 
quires them  to  account  with  the  respective  owners  for 
the  value  of  the  milk  and  calves,  deducting  the  reason- 
able charges  for  their  nourishment. (/>)  It  follows  from 
these  remarks,  that  Lord  Coke  has  assigned  an  inade- 
quate reason  for  the  degree  of  diligence  which  is  de- 
manded of  a  pawnee ;  and  the  true  reason  is,  that  the 
}aw  requires  nothing  extraordinary  of  him. 

iy)  Law  of  Nisi  Prius,  72.  (4) 
(z)  Ld.  Raym.  917-  {a)  Ow.  124. 

(h)  Poth.  Depcft,  n.  47.  Nantissement,  n.  35. 

(-1)  See  Finiirnne  v.  Small.  1  Esp.  N.  P.  €.  315.  ante,  p.  76.  1-. 

12^ 


82  THE   LAW  OF   BAlLMExNTS. 

But,  if  the  receiver  in  pledge  icere  the  only  hailce  who 
had  a  special  property  in  the  thing  bailed,  it  could  not  be 
logically  inferred,  "  that,  therefore,  he  ought  to  keep  it 
"  merely  as  his  oini ;"  for,  even  if  Cuius  have  anahsolutc 
undivided  property  in  goods,  jointly  or  in  common  with 
[  S3  ]  Septimius,  he  is  bound  by  rational,  as  well  as  positive 
law,  to  take  more  care  of  them  than  of  his  oun,  unless 
he  be  in  fact  a  prudent  and  thoughtful  manager  of  his 
own  concerns;  since  every  man  ought  to  use  ordinary 
diligence  in  aft'airs  which  interest  another  as  well  as  him- 
self:  "  Aliena  ncgotia,"  says  the  emperor  CoNSTANTlNE, 
"  exacto  officio  geruntur."(f) 

The  conclusion,  therefore,  drawn  by  Sir  Edward  CoJtC, 
is  no  less  illogical  than  his  premises  are  weak  ;  but  here 
I  must  do  M.  Le  Brnn  the  justice  to  observe,  that  the 
argument  on  which  his  whole  system  is  founded,  occur- 
red likewise  to  the  great  oracle  o? English  law  ;  namely, 
that  a  person  who  had  ^iprcpcrty  in  things  committed  to 
his  charge,  was  only  obliged  to  be  as  careful  of  them  as 
of  his  own  goods ;  which  may  be  very  true,  if  the  sen- 
tence be  predicated  of  a  man  ordinarily  careful  of  his 
own  ;  and,  if  that  was  Le  Brun's  hypothesis,  he  has  done 
little  more  than  adopt  the  system  of  Godcfroi,  who  ex- 
acts ordinary  diligence  from  a  partner  and  a  coproprictor, 
but  requires  a  higher  degree  in  eight  of  the  ten  prece- 
ding contracts. 

Pledges  for  debt  arc  of  the  highest  antiquity ;  they 
were  used  in  very  early  times  by  the  roving  Arabs,  one 
of  whom  finely  remarks,  "  tliat  the  life  of  man  is  no 
*'  more  than  a  pledge  in  the  hands  of  destiny  ;"  and  the 
salutary  laws  of  Moses,  which  forbade  certain  imple- 
[  84  ]  ments  of  husbandry  and  a  widow's  raiment  to  be  given 
in  pawn,  deserve  to  be  imitated  as  well  as  admirotl.    The 

,V,  C.4.  35.  21. 


THE  LAW  OF  BAILMENTS.  84 

distinction  between ijkdging,  Mlicre  possession  is  trans- 
terrcd  to  the  creditor,  and  ht/pothccaiion,  ^vllere  it  re- 
mains with  tlie  debtor,  was  originally  Attic  ;  l)nt  scarce 
any  part  of  the  Athenian  laws  on  this  subject  can  be 
i»lcaned  from  the  ancient  orators,  except  what  relates  to 
bottomry,  in  five  speeches  of  Demosthenes. 

I  cannot  end  this  article  without  mentioning  a  singu-  Tui^kish  law. 
lar  case  from  a  curious  maiuiscript  preserved  at  Ca7n- 
bridge,  which  contains  a  collection  of  queries  in  T^urkish, 
together  with  the  decisions  or  concise  answers  of  the 
Mi'FTi  at  Constantinople  :  it  is  commonly  imagined,  that 
th(!  Turks  have  a  translation  in  their  own  language  of 
the  Greek  code,  from  which  they  have  supplied  the  de- 
fects of  their  Tartarian  and  Arabian  jurisprudence  :{d) 
but  I  have  not  met  with  any  such  translation,  although  I 
admit  the  conjecture  to  be  highly  probable,  and  am  per- 
suaded that  their  numerous  treaties  on  Mahomedan  law 
are  worthy,  on  many  accounts,  of  an  attentive  examina- 
tion. The  case  was  this  :  "  Zaid  had  left  with  Amru 
"  divers  goods  in  pledge  for  a  certain  sum  of  money,  and 
"  some  ruffians,  having  entered  the  house  of  ^mrw,  took 
"  away  his  own  goods,  together  with  those  pawned  by 
"  Zaid.''^  Now,  we  must  necessarily  suppose,  that  the 
creditor  had  by  his  onm  fault  given  occasion  to  this  rob- 
bery ;  otherwise  we  may  boldly  pronounce,  that  the  Turks  [  85  ] 
are  wholly  unacquainted  with  the  imperial  laws  of  By- 
zantium, and  that  their  own  rules  are  totally  repugnant 
to  natural  justice  ;  for  the  party  proceeds  to  ask,  "  whe- 
ther, since  the  "  debt  became  extinct  by  the  loss  of  the 
^^  pledge,  and  since  the  goods  ])awned  exceeded  in  value 
'•  the  amount  of  the  debt,  Zaid  could  legally  demand  the 
•'  balance  of  Amru ;"  to  which  question,  the  great  law 
ofHcer  of  the   Othman  court  ajiswered  with  the  brevity 

{(1)  Duck  de  Auth.  Jur.  Civ.  Kom.  I.  2.  G. 


85  THK  LAW  OF  BAILMENTS. 

usual  on  such  occasions,  Olmaz,  It  cannot  hc.{e)  This 
custom,  we  must  confess,  of  proposing  cases  both  of  law 
and  conscience,  under  feigned  names  to  the  supreme 
judge,  wnose  answers  are  considered  as  solemn  decrees^ 
is  admirably  calculated  to  prevent  partiality,  and  to  save 
the  charges  of  litigation. 

i,aw  of  hiring.  V.  The  last  species  of  bailment  is  by  no  means  the 
least  important  of  the  five,  whether  we  consider  the  infi- 
nite convenience  and  daily  use  of  the  contract  itself,  or 
the  variety  of  its  branches,  each  of  which  shall  now  be 
succinctly,  but  accurately  examined. 

Hiring  of  a  J.  Locatio,  OX  Jocotio-conductio,  REI,  is  a  contract  by 

"^  which  the  hirer  gains  a  transient  qualified  property  in 

£  86  ]  the  thing  hired,  and  the  owner  acquires  an  absolute  pro- 
perty in  the  stipend,  or  price,  of  the  hiring  ;  so  that,  in 
truth,  it  bears  a  strong  resemblance  to  the  contract  of 
emptio-venditio,  or  SALE  ;(5)  and,  since  it  is  advantageous 

(c)Piibl.  Libr  Cambr  MSS.  D<J.  4.  3.  See  Wotton,  LL-  Hy^fel  Dda. 
lib.  2.  cap-  2.  §  29  note  x.  It  may  possibly  be  the  usage  in  Turkey  to  stipu- 
late •'  ut  ainissio  pignoris  liberet  debilorem,"  as  in  C  4  24.  6. 


(5)  For  tlie  hire  or  reward,  answers  to  the  price  in  a  sale  ;  and  the 
riffiit  of  enjoying  the  thinp  hired,  to  the  right  of  property  acquired  by.- 
the  sale.     Just.   Inst.  3.  25.   D.    19.  2.     Grotius,  b.  2.   c    12.  s.  18. 
Puff.    b.  5.  oh.  6.  s.  1. 

A  sale,  by  the  la\*  of  England,  with  respect  to  the  transfer  of  the 
property,  is  governed  by  the  same  general  principles  which  regulate 
a  sale  by  (he  civil  law  ;  and  the  same  responsibility  for  neglect  is  ex- 
acted while  the  article  sold  remains  in  tlie  possession  of  the  seller,  but 
the  property  is  transferred  to  the  buyer  by  the  force  of  the  sale.  See 
ante,  p.  23.  n.  For  when  tiie  price  has  been  agreed  upon,  and  nothing' 
remains  to  be  done  to  ascertain  the  quantity  or  individuality  of  the 
goods,  a  complete  right  of  property  is  transferred  to  the  buyer.  Noy's 
Maxims,  c.  42.  Bythewood's  ed.  205.  recognized  by  Lord  Ellenbo- 
rough,  C.  J.  in  Hinde  v.  Whitehouse,  7  East,  571.  Rugg  v.  Minett, 
11  East,  210.  Nanson  v  Meyer,  6  East,  614.  Wallace  v.  Breeds.  l3 
East,  522.     Buck  v.  Davis,  2  M-  and  S-  397.     And  if,  before  the  de- 


THE  LAW  OF  BAILMENTS.  84) 

to  both  contracting  parties,  the  harmonious  consent  of  na- 
tions will  be  interrupted,  and  one  object  of  this  Essay 
defeated,  if  the  laws  of  England  shall  be  found,  on  a 
fair  inquiry,  to  demand  of  the  hirer  a  more  than  ordinary 
degree  of  diligence.  In  the  most  recent  publication  that 
I  have  read  on  any  legal  subject,  it  is  expressly  said, 
*'  that  the  hirer  is  to  take  all  imaginable  care  of  the  goods 
*'  delivered  for  hire  :"(/)  the  words  all  imaginable,  if  the 
principles  before  established  be  just,  are  too  strong  for 
practice,  even  in  the  strict  case  of  borroiving  ;  but,  if  we 
take  them  in  the  mildest  sense,  they  must  imply  an  ex- 
traordinary degree  of  care  ;  and  this  doctrine,  I  presume, 
is  founded  on  that  of  Lord  Holt,  in  the  case  of  Coggs 
and  Bernard,  where  the  great  judge  lays  it  down,  "  that.  Lord  Holt'* 
'•  if  goods  are  let  out  for  a  rcivard,  the  hirer  is  bound  to  p^aincT. 
"  the  UTMOST  diligence,  such  as  the  most  diligent  fathtr 

(/)  Law  of  Nisi  Prius,  3d  editioa,  corrected,  72. 


iivery,  the  thing  sold  die,  or  is  consumed  by  the  fire,  the  loss  will  fall 
upon  the  buyer.  Noy's  Maxims,  42.  Rugg  v.  Minelt,  U  East.  210.  2 
rji.  Comm.  448. 

The  effect  of  the  contract,  when  complete,  is,  to  transfer  to  the 
buyer  the  rig^it  of  property  in  the  article  sold,  together  with  a  right  to 
ft  delivery  upon  payment  of  the  stipulated  price,  and  to  vest  in  the 
seller  a  right  te  the  price,  and  to  the  fiilfilment  of  the  contract  within 
a  reasonable  time,  and,  until  that  period,  to  retain  possession  of  the 
property.  See  the  cases  supra,  and  Lanfort  v.  Administratrix  of  Ti- 
ler, 1  Salk.  113.  2  Bl.  Comm.  448.  but  see  Greaves  v.  Ashlin,  3  Camp. 
426. 

Tlie  statute  of  frauds,  29  Car.  II.  c.  3.  s.  17.  has  not  altered  the 
common  law  in  these  respects,  but  merely  superadded  certain  formali- 
ties to  the  conditions  required  by  the  common  law  for  the  prevention 
of  fraud,  and  establishing  the  contract  upon  more  satisfactory  proof 
than  mere  parol  declarations.  See  Eann  v.  Hughes,.  7  T.  R.  350. 
n.  (a)  Will.'s  Saund.  211.  n.  2. 


I  -THE  LAW  OF  BAILMENTS. 

"  of  a  family  uscs."(^)  It  may  seem  bold  to  controvcil 
so  respectable  an  opinion  ;  l)ut,  without  insisting  on  the 
palpable  injustice  of  making  a  borroivcr  and  a  hirer  an- 
swerable for  precisely  the  same  degree  of  neglect,  and 
Avithout  urging  that  the  point  was  not  then  before  the 
court,  I  will  engage  to  show,  by  tracing  the  doctrine  up 
to  its  real  source,  that  the  dictum  of  the  Chi^f  Justice 
f  87  ]  was  entirely  grounded  on  a  grammatical  mistake  in  the 
translation  of  a  single  Latin  word. 

In  the  first  place,  it  is  indubitable  that  his  lordship  re- 
lied solely  on  the  authority  of  Bracton,  whose  words  he 
eitcs  at  large,  and  immediately  subjoins,  "  ivhence  it  ajJ- 
"  pears,^^  &c.  Now,  the  words,  "  talis  ab  eo  desideratur 
"  custodia,  qualem  diligentisslmus  paterfamilias  suis 
*'  rebus  adhibet,"  on  which  the  whole  question  depends, 
are  copied  exactly  from  Justinian, {h)  who  informs  us,  in 
the  proeme  to  his  Institutes,  that  his  decisions  in  that 
work  were  extracted  principally  from  the  Commentaries 
o/Gaius  ;  and  the  epithet  diligentissimus  is  in  fact  used 
by  this  ancient  lawyer, (?)  and  hy  him  alone,  on  the  sub- 
ject of  hiring  ;  but  Gains  is  remarked  for  writing  with 
energy,  and  for  being  fond  of  using  superlatives  where  all 
other  writers  are  satisfied  with  positives  ;(k)  so  that  his 
forcible  manner  of  expressing  himself,  in  this  instance, 
as  in  some  others,  misled  the  compilers  employed  by  the 
Emperor,  whose  words  Theophilus  rendered  more  than 
literally,  and  Bracton  transcribed;  and  thus  an  epithet, 
which  ought  to  have  been  translated  ordinarily  diligent, 
has  been  supposed  to  mean  extremely  careful.  By  recti- 
fying this  mistake,  we  restore  the  broken  harmony  of  the 
[  88  ]      Pandects  with  the  Institutes,  which,  together  with  the 

(g)  Ld.  Kaym.  916. 
(/i)  Bract.  62.  b.  Justin.  Inst.  3.  25.5.  where   Theophilus  has  b  a<}>6ha.  i-'- 

(i)  D.  19.  2.  25.  7.  (/.)  Le  Briin,  p.  03. 


THE  LAW  OF  BAILMENTS.  88 

Code^  form  one  connected  work^(J)  and,  when  properly 
understood,  explain  and  illustrate  each  other  ;  nor  is  it 
necessary,  I  conceive,  to  adopt  the  interpretation  of  M. 
De  Ferriere,  who  imagines,  that  both  Justinian  and 
Gains  are  speaking  only  of  cases,  v^\nc\\  from  their  nature 
demand  extraordinary  care.(?«) 

There  is  no  authority  then  against  the  rule,  which  re-  ^arks  *^ 
quires  of  a  hirer  the  same  degree  of  diligence  that  all 
•prudent  men,  that  is,  the  generality  of  manMnd,  use  in 
keeping  their  own  goods, (6)  and  the  just  distinction  be- 
tween borrowing  and  hiring,  which  the  Jervish  lawgiver 
emphatically  makes,  by  saying,  "  if  it  be  an  hired  thing, 
"  it  came  for  it;:  hire,^^{n)  remains  established  by  the  con- 
current wisdom  of  nations  in  all  ages.(Q) 

If  Caius,  therefore,  hire  a  horse,  he  is  bound  to  ride  it 

(/)  Burr.  426.  (m)  Inst.  vol.  v.  p.  138. 

(ji)  Exod.  xxii>  15. 


(6)  This  principle  was  recognized  in  the  case  of  Dean  v.  Keate, 
3  Camp.  4.  where  the  defendant,  who  had  hired  a  pair  of  job  coach 
horses,  having  himself,  instead  of  calling  in  a  farrier,  imprudently 
prescribed  for  one  of  the  horses  which  had  fallen  ill,  in  consequence  of 
which  it  died,  was  holden  responsible  for  the  loss,  by  reason  of  his 
not  having  exercised  that  degree  of  care  which  might  be  expected 
from  a  prudent  man  towards  his  own  horse.  But  had  he  called  in  a 
farrier,  he  would  not  have  been  responsible  for  the  medicines  he  might 
liave  prescribed.  S.  C. 

In  an  action  for  not  taking  proper  care  of  a  hired  horse,  whereby 
his  knees  were  broken,  the  plaintiff  must  give  some  positive  evidence 
of  negligence ;  and  it  is  not  enough  to  prove,  that  the  animal  was 
returned  by  the  defendant  with  his  knees  broken,  and  that  before  that 
time  he  had  often  been  let  out  to  hire,  and  had  never  fallen  down- 
Cooper  V,  Barter,  coram  Le  Blanc  J.  Lancaster  Lent  assizes,  1810- 
3  Camp  5-  n. 

[(q)  And  in  conformity  with  the  opinion  of  Sir  W.  Jones,  is  the  de- 
cision of  the  Supreme  Court  of  New-York,  in  the  case  of  Miller  r. 


80  THE  LAW  OF  BAILMENTS. 

as  moderately,  and  treat  it  as  carefully,  as  any  man  oT 
common  discretion  would  ride  and  treat  his  own  horse ; 
and  if,  through  his  negligence,  as  by  leaving  the  door  of 
his  stable  open  at  night,  the  horse  be  stolen,  he  must  an- 
swer for  it ;  but  not,  if  he  be  robbed  of  it  by  highway- 
men, unless  by  his  imprudence  he  gave  occasion  to  the 
robbery,  as  by  travelling  at  unusual  hours,  or  by  taking 
an  unusual  road  ;(7)  if,  indeed,  he  hire  a  carriage  and 
I  89  ]  any  number  of  horses,  and  the  owner  send  with  them  his 
postilion  or  coachman.  Cuius  is  discharged  from  all  at- 
tention to  the  horses,  and  remains  obliged  only  to  take 
ordinary  care  of  the  glasses  and  inside  of  the  carriage, 
while  he  sits  in  it. (8) 

Since  the  negligence  of  a  servant,  acting  under  his 
master's  directions,  cxjiress  or  implied,  is  the  negligence  of 
the  master, (9)  it  follows,  that,  if  the  servant  of  Corns  in- 
jure or  kill  the  horse    by  riding  it  immoderately,  or,  by 


Salisbury.  13  Johns.  Rep  211.  ;  that  if  a  horse  be  hired  to  go  on  a  jour- 
ney, and  during  the  due  prosecution  of  the  journey,  without  any  ill 
treatment  by  the  hirer,  become  lame,  the  hirer  is  not  answerable  foi* 

damajjes. 

(7)  Vide  2  Lord  Raym.  1087. 

(8)  So,  ii  horses  are  hired  to  draw  a  private  carriage,  but  are  driven 
by  the  servants  of  the  stable  keeper  who  lets  them  out,  he  will  be 
liable  for  any  injury  done  by  them  in  the  course  of  their  journey. 
Sammel  v.  Wright,  5  Esp.  N.  P.  C.  263.  But  if  two  persons  hire  ahorse 
and  chaise  on  their  joint  account,  both  are  answerable  for  any  acci- 
dent arising  from  the  misconduct  of  either  in  the  driving  of  the  chaise 
while  it  is  in  their  joint  care.  Davey  v-  Chamberlain,  4  Esp.  N.  P.  C. 
223.  However,  if  a  person,  driving  his  own  carriage,  were  to  invite 
another  to  accompany  him,  he  would  not  be  responsible  for  any  mis. 
conduct  in  the  driving  by  the  proprietor  of  the  carriage.  S.  C. 

(9)  See  Noy's  Maxims,  c.  44.  Bythewood's  ed,  217.  I  Bl.  Comm. 
431.  1  Lord  Raymond,  739.  Bush  v.  Steinman,  1  Bos.  and  Pul.  404. 
Harris  v-  Baker,  4  M.  and  S.  27.  Nicholson  v.  Mounsey,   15  East, 


THE  LAW  OF-BAILMENTS. 

leaving  the  stable-door  open,  suffer  tliiev(?s  to  steal  it, 
Caius  must  make  the  owner  a  compensation  for  his  loss  ;(o) 
and  it  is  just  the  same,  if  he  take  a  ready-furnished 
lodging,  and  his  guests, ^or  servants,  while  they  act  un- 
der the  authority  given  by  him,  damage  the  furniture  by 
the  omission  of  ordinary  care.  At  Rome  the  law  was 
not  quite  so  rigid ;  for  Pompomus,  whose  opinion  on 
this  point  was  generally  adopted,  made  the  master  lia- 
ble only  when  he  was  culpably  negligent  in  admitting 
careless  guests  or  servants,  whose  bad  qualities  he  ought 
to  have  known  :(p)  but  this  distinction  must  have  been 
perplexing  enough  in  practice ,  and  the  rule  which,  by 

(o)  Salk.  282.  Ld.  Raym.  916.  (p)  D.  19.  2.  11. 


384.  Bowcher  v.  Noidstrom,  1  Taun.  368.  Ellis  v.  Turner,  8  T  R. 
533.  But  the  act  must  be  done  in  tlie  master's  service,  and  in  obediv 
ence  to  his  orders,  for  the  master  is  not  responsible  for  an  injury  wil- 
fully committed  by  the  servant,  without  his  knowledge  or  assent. 
Where  a  servant  of  the  defendant  wilfully  drove  his  chariot  against 
the  plaintiff's  chaise,  by  which  he  was  tlnown  out  and  considerably 
hurt,  but  the  defendant  was  not  present,  nor  did  he  in  any  manner  di- 
rect or  assent  to  the  act  of  the  servant,  it  was  decided,  that  the  owner 
of  the  chaise  could  not  maintain  an  action  of  trespass  against  the  mas- 
ter. M'Manus  v.  Cricket,  1  East,  106.  And  in  a  late  case,  where 
an  action  was  brought,  and  damages  recovered  for  an  injury  sustained 
by  the  plaintiff's  charriot  being  overturned  by  the  defendant's  carriage, 
in  which  it  appeared,  that  the  accident  arose  from  the  defendant's  ser- 
vant striking  the  plaintiff's  horses  when  the  two  carriages  were  entan- 
gled, in  consequence  of  which  they  moved  forward,  and  the  carriage 
was  overturned,  this  distinction  was  laid  down  by  the  court :  "  If  a  ser- 
"  vant  driving  a  carriage,  in  order  to  effect  some  purpose  of  his  own., 
"  wantonly  strikes  the  horses  of  another  person,  and  produce  the  acci- 
"  dent,  the  master  will  not  be  liable.  But  if,  in  order  to  perform  his 
"  master's  orders,  he  strikes  but  injudiciously,  and  in  order  to  extricate 
"  himself  from  the  difficulty,  that  will  be  negligent  and  careless  con- 
*'  duct,  for  which  the  master  will  be  liable,  being  an  act  done  m  pursu- 
"  ance  of  the  servant's  employment."    Croft  v.  Alison,  4  B.  and  A.  590, 

13 


89 


3&  THE  LAW  OF  BAILMENTS. 

making  the  head  of  a  family  answerable  indiscriminate- 
ly for  the  faults  of  those  whom  he  receives  or  employs, 
compels  him  to  keep  a  vigilant  eye  on  all  his  domestics, 
is  not  only  more  simple,  but  more  conducive  to  the  pub- 
lic security,  although  it  may  be  rather  harsh  in  some 
[  90  ]  particular  instances. (5^)  It  may  here  be  observed,  that 
this  is  the  only  contract  to  which  the  French,  from  whom 
our  word  bailment  was  borrowed,  apply  a  word  of  the 
same  origin ;  for  the  letting  of  a  house  or  chamber  for 
hire  is  by  them  called  bail  a  loycr,  and  the  letter  for 
hire,  baiUeur,  that  is,  bailor,  both  derived  from  the  old 
verb  bailler,  to  deliver ;  and,  though  the  contracts 
which  are  the  subject  of  this  Essay  be  generally  confin- 
ed to  moveable  things,  yet  it  will  not  be  improper  to  add, 
that,  if  immoveable  property,  as  an  orchard,  a  garden, 
\  or  a  farm,  be  letten  on  parol,  with  no  other  stipulation 

than  for  the  price  or  rent,  the  lessee  is  bound  to  use  the 
same  diligence  (1)  in  preserving  the  trees,  plants,  or  im- 

(7)  Poth.  Louage,  n.  193. 


(1)  In  this  case  a  contract  is  implied  by  law,  on  the  part  of  a  tenant 
that  he  will  occupy  the  farm  in  a  husbandlike  manner,  and  the  mere 
relation  of  landlord  and  tenant  is  a  sufficient  consideration  for  the  ten- 
ant's promise  to  manajre  a  farm  in  that  mode,  according  to  the  custom 
of  the  country.  Powley  v.  Walker,  5  T.  R.  573.  Leigh  v.  Hewit, 
4  East,  154.  The  repair  of  the  fences  also  devolves  upon  the  tenant; 
and  if  any  injury  accrues  to  another  by  reason  of  their  being  out  of 
repair,  the  action  should  be  brought  against  the  occupier,  and  not  tiie 
owner  of  the  fee.  "  It  is,"  Lord  Kenyon,  C.  J.  observed,  "so  noto- 
"  riously  the  duty  of  the  actual  occupier  to  repair  the  fences,  and  so 
"  little  the  duty  of  the  landlord,  that,  without  any  agreement  to  that 
•'  effect,  the  landlord  may  maintain  an  action  against  the  tenant  for  not 
"  so  doing,  upon  the  ground  of  the  injury  done  to  the  inheritance." 
Cheelham  v.  Hampson,  4  T.  R.  318.  Payne  v.  Rogers,  2  H.  Bl.  350. 
Vide  Gibson  v.  Wells,  1  Bos.  and  Pul.  N.  R.  290.  Brown  v.  Crump. 
1  Marsb  R.  66f 


THE  LAW  OF  BAILMENTS.  90 

|)lenients,  tijat.  every  prudent  person  would  use,  if  the  or- 
chard, garden,  or  farm,  were  liis  own.(ii) 

2.  Locatio  operis,  which  is  properly  subdivisible  into  Hiring  of 

work, 

two  branches,  namely,  facitndi,  and  mercium  vehenda- 
rim,  has  a  most  extensive  influence  in  civil  life  ;  but  the 
principles  by  which  the  obligations  of  the  contracting 
parties  may  be  ascertained,  are  no  less  obvious  and  ra- 
tional, than  the  objects  of  the  contract  are  often  vast 
and  important. (r) 

If  Tidus  deliver  silk  or  velvet  to  a  tailor  for  a  suit  of     [  91  ] 
clothes,  or  a  gem  to  a  jeweller  to  be   set  or   engraved, 
or  timber  to  a  carpenter  for  the  rafters  of  his  house,  the 
tailor,  the  engraver,  and  the   builder, (2)  are  not  only 

(r)  It  may  be  useful  to  mention  a  nicety  of  the  Latin  Language  in  the 
application  of  the  verbs  locare  and   conducere ;    the  employer,  who  gives 
the  reward,  is  locator  operis,  but   conductor  operarum ;  while    the  party 
employed,  who  receives  the  pay,  is  locator  operarum,  but  conducter  operis. 
Heinecc.  in  Pand.  par.  3   s.320.     So,  in  Horace, 
"  Tu  secanda  marmora 
"  Locas" — 
which  the  stonehewer  or  mason  eonduxit. 


(2)  Contracts  of  tliis  nature  caa  only  arise  from  the  mutual  assent  of 
both  parties  ;  for  persons  of  the  above  description  are  not,  like  com- 
mon carriers,  innkeepers  or  farriers,  obliged  to  perform  the  work  be- 
longing-to  their  respective  occupations,  but  having  performed  it  ac- 
cording to  their  undertaking,  thej^  are  entitled  to  detain  the  article 
until  they  are  paid  the  charges  for  their  workmanship.  Elsee  v. 
Gatward,  5  T.  R.  150.  ante,  54.  n.  4.  The  obligation  of  restoring  the 
subject  of  the  bailment,  after  the  object  for  which  it  was  deposited 
has  been  completed,  must  therefore  be  qualified  by  this  right  of  lien. 
And  in  any  of  the  above  cases,  wherever  a  debt  accrues  to  the  bailee 
from  the  bailor,  in  consequence  of  the  bailment,  as  when  the  tailor 
has  made  the  suit  for  which  the  cloth  was  delivered.  2  Roll.  Abr.  92. 
(M.)  pi- 1- ;  or  the  jeweller  has  set  or  engraved  the  seal ;  or  where  a 
hosre  has  been  agisted  by  the  farmer,  or  corn  ground  by  the  miller, 


[  (r)  Where  a  chattel  is  let  for  hire,  the  bailor  is  not  bound  to  keep 
it  in  repeir ;  it  is  the  bailee's  business.  Taylor  v.  Whitehead,  Dong. 
720.  Pomfret  v.  Bicroft,  1  Saund,  321. 


Ql  THE  LAW  OF  BAILMENTS. 

obliged  to  perform  their  several  undertakings  in  a  work- 
manly  manner, (s)  but  since  they  are  entitled  to  a  reward, 
either  by  express  bargain  or  by  implication,  they  must 
also  take  ordinary  care  of  the  things  respectively  bailed 
to  them  :  and  thus,  if  a  horse  be  delivered  either  to  an 
agisting  farmer  for  the  purpose  of  depasturing  in  his 

(.?)  1  Ventr.  268.  erroneously  printed  1  Vern.  268.  in  all  the  editions 
of  Bl.  Coram,  ii.  452.  The  innumerable  multitude  of  inaccurate  or  idle 
references  iu  our  best  reports  and  law  tracts,  is  the  bane  of  the  student 
and  of  the  practistr. 

Chase  v.  Westmore,  5  M-  and  S.  180,  the  bailee  has  a  lien  upon  the 
subject  of  the  bailment,  which  he  cannot  be  compelled  to  re  deliver 
until  his  demand  has  been  previously  satisfied.     This  right,  bj  the 
common  law,  attaches  only  upon  the  particular   article  in  respect  of 
which  the  charges  have  been  incurred,  but   may  be  extended,   by 
agreement  between  the  parties,  to  all  the  articles  in  the  possession  of 
the  person  entitled  to  it,  not  only  for  the  charges  with  respect  to  them, 
but  also  for  charges  upon  articles  previously  delivered,  but  not  satisfied- 
Kirkmanv.  Shawcross,  6T.R.  17.     Rushforth  v.  Hadfield,6  East,  519. 
7  East,  224.     But   where   a   quantity  of  goods  are  delivered  in  sepa- 
rate parcels  at  different  times,  yet  if  the  agreement  under  which  the 
work  is  done  be  entire,  tlie  right  of  lien  attaches  upon  each  part  for 
the  expenses  arising  with  respect  to  the  whole.     Blake  v.  Nicholson, 
3  M.  and  S.  167.     Chase  v.  Westmore,  5  M.  and  S.  181.     A  more 
extended    lien,  however,  may  exist  by  a  special  agreement  between 
the  parties ;  and  where  a  person  has  given  notice  to  his  employer  that 
he  will  not  take  in  goods,  without  having  alien  for  his  general  balance, 
and  goods  are  sent  after  such  notice,  then  the  bailee  can  detain  the 
bailment  until  he  is  paid  all  that  is  due  to  him.     Persons  also  in  par- 
ticular trades,  as  dyers,  bleachers,  &c.  may  join  in  such  resolution,  and 
their   customers,  who  have  had  notice  of  it,  will  be  bound  by  its  terms. 
Kirkman  v.  Shawcross,   6  T.  R.   14.     A  bailee,  having  a  qualified 
property  in  the  subject  of  the  bailment,  and  being  responsible  to  his 
bailor  for  the  safe  custody  of  it,  may  maintain  an  action  for  any  injury 
which  it  may  sustain.    The  bailor  may  also  have  an  action,  but  not 
both  of  them,  for  he  that  first  begins  the  action  must  go  on  with  it,  and 
judgment  obtained  by  one  is  a  good  bar  to  the  action  of  the  other. 
Flewellin  v.  Rave,  1   Bulstrode,  69.     Booth  v.  Wilson,  1  Barn,  and 
Aid.  59.     J  Wms,'  Saund.  47  e.  a.  1.    2  Bl.  Comm.  395. 


THE  LAW  OF  BAILMENTS.  91a. 

meadows,  or  to  an  hostler  to  be  dressed  and  fed  in  his' 
stable,  the  bailees  are  answerable  for  the  loss  of  the 
horse,  if  it  be  occasioned  by  the  ordinary  neglect  of 
themselves  or  their  servants.  It  has,  indeed,  been  ad- 
judged, that,  if  the  horse  of  a  guest  be  sent  to  pasture 
by  the  oivncr''s  desire,  the  innholder  is  not,  as  such,  re-  L  "^  J 
sponsible  for  the  loss  of  him  by  theft  or  accident  ;{t) 
and  in  the  case  of  Mosley  and  Fosset,  an  action  against 
an  agister  for  keeping  a  horse  so  negligently  that  it  was 
stolen,  is  said  to  have  been  held  maintainable  only  by 
reason  of  a  special  assumption  ;(m)  but  the  case  is  dif- 
ferently reported  by  Rolle,  who  mentions  no  such  rea- 
son ;  and,  according  to  him.  Chief  Justice  Popham  ad- 
vanced generally,  in  conformity  to  the  principles  before 
established,  that,  "  if  a  man,  to  whom  horses  are  bailed 
*'  for  agistment,  leave  opeu  the  gates  of  his  field,  in  con- 
"  sequence  of  which  neglect  they  stray  and  are  stolen, 
"  the  owner  has  an  action  against  him  :"  it  is  the  same 
if  the  innkeeper  send  his  guest's  horse  to  a  meadow  ofj^^^-  concem- 
his  oivn  accord,  for  he  is  bound  to  keep  safely  all  such  '"^  >nn-hoid* 
things  as  his  guests  deposit  xvithin  his  inn,{^)  and  shall 
not  discharge  himself  by  his  own  act  from  that  obliga- 
tion ;  and  even  when  he  turns  out  the  horse  hy  order  of 
the  owner,  and  receives  pay  for  his  grass  and  care,  he  is 
chargeable,  surely,  for  ordinary  negligence,  as  a  bailee 
for  hire,  though  not  as  an  innkeeper  by  the  general  cus- 
tom of  the  realm.  It  may  be  worth  while  to  investigate 
the  reasons  of  this  general  custom,  which,  in  truth,  means 
no  more  than  common  law  concerning  innholders.{t«) 

(0  8  Rep.  32.  Calye's  case. 
(m)  Mo.  543.  l-Ro  A.br.  4. 
{w)  Reg.  Oiig   105.  a.     Noy.  Max.  ch.  43. 


(3)  See  page  94  c.  n,  5. 


93  THE  LAW  OF  BAILMENTS. 

Although  a  stipend  or  reward  in  money  be  the  essence 
of  the  contract  called  locatio,  yet  the  same  responsibility 
for  neglect  is  justly  demanded  in  any  of  the  innominate 
contracts, (4)  or  whenever  a  valuable  consideration  of 
any  kind  is  given  or  stipulated.  This  is  the  case  where 
the  contract  do  ut  des  is  formed  by  a  reciprocal  bailment 
for  use ;  as  if  Robert  permit  Henry  to  use  his  pleasure- 
boat  for  a  day,  in  consideration  that  Henry  will  give  him 
the  use  of  his  chariot  for  the  same  time  ;  and  so  in  ten 
thousand  instances,  that  might  be  imagined,  of  double 
bailments :  this  too  is  the  case  if  the  absolute  property  of 
one  thing  be  given  as  an  equivalent  for  the  temporary  or 
limited  property  of  another,  as  if  Charles  give  George  a 
brace  of  pointers  for  the  use  of  his  hunter  during  the 
season.  The  same  rule  is  applicable  to  the  contract 
facia  ut  facias,  where  two  persons  agree  to  perform  re- 
ciprocal worJcs  ;  as  if  a  mason  and  a  carpenter  have  each 
respectively  undertaken  to  build  an  edifice,  and  they  mu- 
tually agree,  that  the  first  shall  finish  all  the  masonry, 
and  the  second  all  the  wood- work,  in  their  respective 
buildings  ;  but,  if  a  goldsmith  make  a  bargain  with  an 
architect  to  give  him  a  quantity  of  wrought  plate  for 
building  his  house,  this  is  the  contract  do  ut  facias,  or 
facio  ut  des  ;  and  in  all  these  cases,  the  bailees  must  an- 
swer for  the  omission  of  ordinary  diligence  in  preserving 
the  things  with  which  they  are  intrusted  :  so,  when  Jacob 
undertook  the  care  of  Laban's  flocks  and  herds  for  no 
less  a  reward  than  his  younger  daughter,  whom  he  loved 
[  94  ]  so  passionately,  that  seven  years  ivere  in  his  eyes  like  a  few 
days,  he  was  bound  to  be  just  as  vigilant  as  if  he  had 
been  paid  in  shekels  of  silver. 

(4)  See  Halifax's  Analysis  of  the  Roman  Civil  Law,  62.  Wood's  In- 
stitutes of  the  Civil  Law,  206.  2-  Bl.  Coram-  444.  where  the  nature 
of  this  species  of  contract  is  explained  and  illustrated. 


THE  LAW  OF  BAILMENTS.  94 

Now,  the  obligation  is  precisely  the  same,  as  we  have 
already  hinted, (a:)  when  a  man  takes  upon  himself  the 
custody  of  goods  in  consequence  and  consideration  of  an- 
other gainful  contract;  and  though  an  innholder  be  not 
paid  in  money  for  securing  the  traveller's  trunk,  yet  the 
guest  facit  ut  faciat,  and  alights  at  the  inn,  not  solely 
for  his  own  refreshment,  but  also  that  his  goods  may  be 
safe  :  independently  of  this  reasoning,  the  custody  of  the 
goods  may  be  considered  as  accessary  to  the  principal 
contract,  and  the  money  paid  for  the  apartments  as  ex- 
tending to  the  care  of  the  box  or  portmanteau  ;  in  which 
light  Gaius  and,  as  great  a  man  as  he.  Lord  Holt,  seem 
to  view  the  obligation  ;  for  they  agree,  "  that,  although 
"  a  bargeman  and  a  master  of  a  ship  receive  their  fare 
"  for  the  passage  of  travellers,  and  an  innkeeper  his  pay 
'.'  for  the  accommodation  and  entertainment  of  them, 
"  but  have  no  pecuniary  reward  for  the  mere  custody  of 
*'  the  goods  belonging  to  the  passengers  or  guests,  yet 
*'  they  are  obliged  to  take  ordinary  care  of  those  goods  ; 
"  as  a  fuller  and  a  mender  are  paid  for  their  skill  only, 
'*  yet  are  answerable,  ex  locato,  for  ordinary  'neglect,  [if 
"  the  clothes  be  lost  or  damaged. "(?/) 

In  whatever  point  of  view  we  consider  this  bailment, 
no  more  is  regularly  demanded  of  the  bailee,  than  the 
care  which  every  prudent  man  takes  of  his  own  property  ; 
but  it  has  long  been  holden,  that  an  imikeeper  is  bound 
to  restitution,  if  the  trunks  or  parcels  of  his  guests,  com- 
mitted to  him  either  personally,  or  through  one  of  his 
agents,  be  damaged  in  his  inn,  or  stolen  out  of  it  by  any 
person  whatever  ',{z){S)  nor  shall   he  discharge   himself 

(x)  p.  49,  50. 

(y)  D.  4.  9.  5.  and  12  Mod.  487. 

(z)  Year  B.  10.  Hen.  VII.  26.    2  Cio.  189. 

(5)  This  proposition  is  laid  down  rather  too  extonsirelv ;  for  an  inn- 


94a.  'f^I*^  LAW  OF  BAILMENTS. 

from  this  responsibility  by  a  refusal  to  take  any  care  of 
the    goods,   because  there   are  suspected  persons    in    the 

keeper  will  uot  be  responsible,  if  the  guest  be  robbed  by  his  own 
servant,  or  companion,  or  any  one  whom  he  desires  to  be  lodged  with 
him ;  for  in  these  cases,  the  loss  is  rather  attributable  to  the  guest,  than 
to  any  fault  on  the  part  of  the  innkeeper.  Calye's  Case,  8  Rep.  33. 
Noy's  Maxims,  Bythewood's  ed.  213.  Edwards'  Case,  Cro.  Eliz.  285, 
Burgess  v.  Clements,  4  M.  and  S.  311. 

The  liability  of  an  innkeeper,  as  defined  by  a  writ  of  trespass  in  the 
Registrum  Brevium,  fo.  If  5.  Fitz.  N.  B.  94.  against  an  innkeeper,  for 
the  loss  of  the  goods  of  his  guest,  vvhich  is  the  foundation  of  the  com- 
mon law  upon  this  subject,  and  upon  which  Calye'scase,  8  Rep.  32.  is 
a  commentary,  is  not  so  extensive  as  that  of  a  common  carrier  ;  yet  up- 
on principles  of  public  policy  is  greater  than  what,  according  to  the 
principle  contained  in  this  essay,  would  be  exacted  from  him  by 
reason  of  his  reward.  According  to  the  terms  of  that  writ,  an  inn- 
keeper, who  keeps  a  common  inn  for  the  entertainment  of  travellers* 
is  bound  to  take  care  of  the  goods  and  chattels  of  his  guest,  which 
are  within  his  inn,  without  loss  or  damage,  so  that  no  injury  arises 
by  any  means  through  the  default  of  him,  or  his  servants.  J^ide  Beedle 
V.  Morris,  Cro.  Jac.  224.  Cross  v.  Andrews,  Cro.  Eliz.  622.  Noy's 
Maxims,  Bvthewood's  Ed.  213.  1  Com.  Dig.  298.  1  Roll.  Abrid.  2. 
(D.)1.4.  " 

An  inn  may  be  defined  to  be  a  house  kept  open  publicly,  for  the 
lodging  and  entertainment  of  travellers  and  others,  paying  a  reasona- 
ble compensation  for  the  acccommodation  which  is  professed  to  be 
given.  Calye's  case,  8  Rep.  32.  Parkhurst  v.  Foster,  Carth  417. 
Thompson  v.  Lacy,  3  Barn,  and  Aid.  285.  It  is  said  if  a  man  puts  a 
sign  at  his  door,  and  harbours  guests,  that  shall  be  deemed  a  common 
inn,  and  the  owner  chargeable  as  an  innkeeper :  and  that  if,  after 
taking  down  the  sign,  he  continues  to  entertain  travellers,  it  shall  be 
deemed  a  common  inn,  as  if  he  had  a  sign.  2  Roll.  Rep.  344,  5.  A 
sign  is  not  essential  to  an  inn,  but  is  evidence  of  it.  Per  Holt,  C  J. 
in  Parker  v.  Flint,  12  Mod.  255.  But  a  person  who  lived  at  Epsom, 
and  lodged  strangers  in  the  season  for  drinking  the  waters,  and  dressed 
victuals  for  them,  and  sold  beer  to  his  lodgers,  and  to  none  else,  and 
found  hay  for  their  horses,  is  not  an  innkeeper,  nor  can  bis  house  be 
considered  as  an  inn.  Parkhurst  v.  Foster,  Carth.  417.  5  Mod.  427. 
1  Salk.  387.  S.  C. 

A  house  of  public  eDtertaioment  in  London,  in  this  case,  a  tarern 


THE  LAW  OF  BAILMENTS.  94}). 

house  for  lohose  conduct  he  cannot  he  answerahle  :{a)  it  is 
otherwise,  indeed,  if  he  refuse  admittance  to  a  traveller 

(a)  Mo.  78. 

and  coffee-house,  where  lodging  and  entertainment  are  provided  for 
travellers  and  others  indiscriminately,  but  which  was  not  frequented 
by  stage-coaches,  and  waggons,  and  had  no  stables  belonging  to  it, 
was  considered  as  an  inn,  and  the  owner  subject  to  the  liabilities  of  an 
innkeeper,  even  where  the  guest  did  not  appear  to  have  been  a  travel- 
Jer,  but  one  who  had  previously  resided  in  ready  furnished  lodgings. 
Thompson  v.  Lacy,  3  Barn,  and  Aid.  285. 

In  a  case  where  a  question  arose  whether  a  coffee-house  came  with^ 
in  the  description  of  an  inn  in  a  policy  of  insurance  against  fire,  enu- 
merating the  trade  of  an  innkeeper  with  others  as  doubly  hazardous, 
Lord  Ellenborough,  C.  J.  observed,  "  I  think  a  coffee-house  is  not  an 
"  inn,  within  the  meaning  of  the  policy.  Horses,  waggons,  and 
"  coaches  come  to  an  inn,  there  are  stables  and  outhouses  attached  to 
"  it,  people  are  going  to  these  with  lights  at  all  hours;  hence  there  is 
"  an  increased  danger  of  fire,  and  the  trade  of  an  innkeeper  is  conside  '. 
"  red  doubly  hazardous.  But  the  trade  of  a  eoffee  house  keeper  is  of 
"  a  very  different  description."     Doe,  ex  dem.   Pitt,   v.    Laming,   4  • 

Camp.  77. 

Common  inns,  according  to  the  commentary  in  Calye's  case,  8  Eep.  Gucsf&. 
32.,  were  instituted  for  passengers  and  wayfaring  men,  for  the  latin 
word  for  an  inn  is  diver sorium,  because  he  who  lodges  there  is  quasi 
divertens  se  a  via,  and  theref.^^e  if  a  neighbour  who  i?  not  a  traveller, 
at  the  request  of  the  innkeeper,  lodges  there  as  a  friend,  and  his  goods 
are  stolen,  he  shall  not  have  an  action.  Fide  1  Foil.  Abr.  3.  (E.)pl.  4. 
So  if  a  man  hires  a  chamber  for  a  term,  or  sojourns  in  an  inn  upon  a 
special  agreement.  Latch.  127.  Moore,  877.  Per  Holt,  C.  J.  in 
Parker  v,  Flint,  12  Mod.  254.  or  if  a  person  be  a  guest,  but  deliver 
the  goods  to  an  innkeeper  upon  another  account.  1  Roll.  Abr.  3  (E.) 
pi.  1.  the  innkeeper  is  not  chargeable.  But  a  person  who  continues 
for  a  week  or  more  ;  or  goes  out,  and  says  that  he  will  return  at  night, 
Drope  v.  Thaire,  I  Latcli.  127.  Moore,  8C7.  Gelley  v-  Clark,  Cro. 
Jac.  189.  or  if,  during  a  temporary  absence,  he  leaves  goods,  as  a 
horse,  from  which  the  owner  may  derive  a  profit  on  account  of  their 
keep,  Gelley  v.  Clark,  Cro.  Jac.  ISO.  Buller,  N.  P.  72.  Bridgeman's 
Ed.  York  v.  Grindstone,  1  Salk.  388.  2  L.  Ray.  860.  S.  C  such  person 
will   be   entitled  to   be  considered  as  a  guest-     But  if  the  goods  are 

11 


94c.  THL:   law  of  BAlLMENTri. 

because  lie  really  has  no  room  for  him,  and  the  travel- 
ler, nevertheless,  insist  upon  enter in<^,  and  place  his  bag- 
gage in  a  chamber  without  the  keeper's  consent.(6) 

{b)  Dy.  158.   b.     1  And.  29. 

sucli  as  the  innkeeper  can  derive  no  benefit  from  on  account  of  their 
keep,  a  guest  will  not  continue  to  be  such  after  ho  has  quitted  the  inn, 
Gellcy  V.  Clark,  supra.  So  if  a  servant  come  into  an  inn  and  ask  to 
leave  his  master's  goods  till  the  next  market  day.  and  the  innkeeper 
refuses,  because  his  house  is  full  of  parcels,  and  the  servant  sit  dowif 
and  drink  as  a  guest,  and  put  the  goods  behind  him,  and  they  are  lost, 
the  innkeeper  is  liable  to  the  master  Bennett  v.  Mellor,  5  T.  R.  273. 
Duties  of  an  An  innkeeper  is  bound  to  receive  a  guest,  having  room  for  him,  and 
c^peJ-  jf  Y\e  refuse,  ivithout  a  reasonable  ground  for  his  refusal,  as  on  a  false 
pretence  that  his  liouse  is  full,  he  will  be  liable  to  an  action.  Dyer, 
158.  b.  1  Roll.  Abrid.  3.  (F.)  pi.  1.  2  Roll.  Rep.  345.  Carth.  418. 
1  Hawk.  P.  C.  225.  52.  Per  Duller  and  Grose,  J.  in  Bennett  v 
Mellor,  5  T.  R.  274.  But  an  innkeeper  does  not  absolutely  engage  to 
receive  every  person  who  comes  to  his  house,  but  only  those  who  are 
capable  of  paying  a  compensation  suitable  to  the  accommodation  pro- 
vided. Per  Abbot,  C.  J.  and  Bailey,  J.  in  Thompson  v.  Lacy,  3 
Barn,  and  Aid-  285. 

An  innkeeper  is  also  bound  to  take  care  of  the  goods  of  his  guest 
being  within  his  inn,  although  the  guest  neither  delivers  them  to  the 
innkeeper,  nor  acquaints  him  with  them.(T)     Calye's  case,  8  Rep.  33. 

[(t)  Jn  the  ease  of  Quinton  v.  Courtney,  Hayw.  North  Car-  Rep. 
41.  a  traveller  who  had  saddle  bags,  in  which  were  two  hundred  dollars, 
upon  alighting  at  tiie  inn,  delivered  the  bags  to  a  servant  of  tlic 
tavern-keeper,  but  did  not  inform  either  the  servant  or  tavern-keeper 
that  money  was  in  the  bags.  These  bugs  were  placed  in  the  bar- 
room, and  vvcre  afterwards  found  on  the  lot,  cut  open,  and  the  money 
gone,  it  was  held  that  the  innkeeper  was  liable.  So  in  the  case  ai 
Clutev.  Wiggins,  14  Johns.  Rep.  173.  It  was  decided  thai  to  make 
the  innkeeper  liable  it  was  not  necessary  that  the  goods  should  be 
delivered  into  his  special  keeping;  nor  to  prove  negligence.  But  if 
the  truit  was  hot  reposed  in  the  innkeeper,  but  in  another  person,  who 
ivas  not  in  the  capacity  of  a  servant,  but  occasionally  in  the  business 
of  the  family,  the  case  is  taken  out  of  the  general  rule,  and  the  inn- 
keeper is  not  liable.  1  Yeates'  Rep.  34. 


THE  LAW  OF  BAILMENTS.  95 

^    Add  If)  this,  that  if  he  fail  to  provide  honest  servcmis, 
and  honest  inmates,  according-  to  the  confidence  reposed 


A'oy's  Maxims,  92-  Bj-tbcwood^s  Ed.  213.  But  if  nn  innkeeper  re- 
fuse to  receive  a  guest  because  Iiis  house  is  really  full,  and  j'et  the 
party  says  lie  will  sliift  for  liimself,  if  he  be  robbed,  the  innkeeper  is 
discharged.  White's  case,  Dyer,  15R.  b.  Doct.  and  Stu.  23?-,  239-  F. 
jV.  B.  94.  95.  Dyer,  266.  This  liability  extends  to  all  goods,  by  the 
loss  of  which  damage  may  arise  to  the  guest,  as  deeds,  bonds,  or  other 
specialties,  but  doos  not  extend  to  any  personal  injury  to  the  guest  • 
but  only  to  his  moveables.  C'alye's  case,  8.  Eep.  33.  2  Roll.  53. 
Dyer,  5.  pi.  2.  Yelv  68.  But  they  must  be  within  the  inn  at  the  time 
of  the  loss,  for  if  the  horse  of  the  guest  be  put  out  to  pasture  at  his 
own  desire,  and  it  is  then  stolen,  tlie  innkeeper  will  not  be  responsible  . 
but  if  iie  do  it  without  tlie  guest's  order,  he  will  remain  liable.  C'alye's 
case,  8  Rep.  32.  Noy's  Maxims,  93.  Bythcwoods  Ed.  213.  So  if  the 
guest  leave  the  goods  in  an  outer  court,  in  consequence  of  which  they 
are  stolen,  the  innkeeper  is  not  responsible.  JVoy's  IMaxims,  93. 
Bythewood's  Ed.  213. 

A  traveller  for  orders  who  put  up  at  the  defendant's  inn,  had  appi'O- 
priated  to  him,  at  his  own  desire,  a  private  room  whicli  opened  into  a 
gateway  leading  to  the  street,  for  the  purpose  of  showing  his  goods  to 
bis  customers.  After  dining  in  the  traveller's  room,  where  upon  his 
arrival  he  had  been  conducted,  and  his  goods  placed,  he  removed  to 
tlie  private  room,  and  while  displaying  bis  goods,  which  consisted 
chiefly  of  articles  of  jewellery,  he  was  twice  interrupted  by  a  stranger. 
Tliere  was  a  key  to  the  door,  wliich  he  was  told  he  might  have,  but 
upon  his  leaving  the  inn  he  did  not'  lock  tlie  door,  nor  did  he  know 
that  he  even  shut  it,  and  upon  his  return  in  the  evening,  two  of  his 
boxes  were  missing.  In  an  action  against  the  innkeeper  for  the  loss 
of  the  goods,  a  verdict  was  found  in  his  favour,  which  was  afterwards 
sanctioned  by  the  court,  upon  the  ground,  that  tiie  room  was  not  as- 
signed to  the  traveller  merely  as  a  guest,  but  for  a  purpose  for  which 
the  innkeeper  was  not  bound  to  provide  it,  and  wliich  led  to  the  intro- 
duction of  persons  over  whom  be  bad  no  controul,  and  that  after  the 
interruption  of  the  stranger,  it  became  the  c'uty  of  the  traveller  to  use 
ordinary  care  for  the  preservation  of  liis  goods,  and  that  it  was  owing  to 
his  neglect,  and  not  to  the  fault  of  the  innkeeper,  that  tlic  loss  had 
happened      Burgess  v.  C'b  mrnts,  4  iM.  and  S.  306. 

J'jom  this  obligation  the  innkeeper  cannot  discharge  hir7i=plf.  and  de- 


95a.  THE  LAW  OF  BAILMENTS. 

ill  him  by  the  pubhc,  his  negligence  in  that  respect  is 
highly  culpable,  and  he  ought  to  answer  civilly  for  their 

feat  the  provisions  of  the  law  by  anj-  act  of  his  own,  as  by  putting  bis 
guest's  horse  out  to  pasture  without  his  consent-  Cal3e's  case,  sup. 
So,  "  it  is  DO  excuse  for  an  innkeeper  to  say  that  he  delivered  the  key 
of  the  chamber-door  to  his  guests,  in  which  he  is  lodged,  and  that  he 
left  the  chamber  door  open  ;  but  he  ought  to  keep  the  goods  and  chat- 
tels of  his  guests  in  safety."  22  U.  VI.  21.  ll  H.  IV.  45.  42  Ed.  HI. 
11.  Calye's  case,  8  Rep.  33.  But  if  there  is  evidence  that  he  accepted 
the  key,  and  took  upon  himself  the  care  of  his  goods,  it  will  be  for  a 
.  jury  to  determine  whether  this  evidence  of  his  receiving  the  key  proves 
that  he  did  it  animo  custodiendi,  and  with  a  purpose  of  exempting  the 
innkeeper,  or  whether  he  took  it  merely  because  the  landlord  forced  it 
upon  him,  or  for  the  sake  of  securing  greater  privacy,  in  order  to  pre- 
vent persons  from  intruding  themselves  into  his  room.  Burgess  v.  Cle- 
ments, 4  M.  and  S.  310.  Nor  can  he  discharge  himself  by  a  plea  that 
lie  was  sick,  and  of  non-sane  memory,  at  the  time  the  guest  lodged  with 
hisn,  for  an  innkeeper  must  at  his  peril  keep  safely  his  guest's  goods  ; 
and  if  he  be  sick,  his  servant  then  ought  carefully  to  look  to  them. 
Cross  v.  Andrews,  Cro.  Eliz.  622.  The  liability  of  the  innkeeper  ex- 
tends only  to  losses  which  arise  from  bis  want  of  care,  or  that  of  his 
servants,  and  not  to  an  injury  committed  by  the  King's  enemies.  Plow. 
Com.  9.  1.  Nor  to  any  damage  arising  from  the  default  of  the  guest. 
Calye's  case,  8  Rep.  20.  Nov's  Maxims,  By  the  wood's  Ed.  213.  And 
therefore,  if  an  innkeeper  requires  his  grfest  to  lock  up  his  goods  in 
such  a  chamber,  or  he  will  not  warrant  their  safety,  and  the  guest  suf- 
fers them  to  lie  open  in  an  outer  court,  the  host  is  not  liable  if  they  are 
stolen.  Sanders  v.  Spencer,  Dyer,  2GC.  I.  Noy's  Maxims,  Bythewood's 
Ed.  213. 

The  keeper  of  an  hotel  is  not  liable  to  pay  for  the  washing  of  the  lin- 
en of  the  guests  at  liis  house.  Callard  v.  White,  1  Stark.  N  P.  C.  171. 
Kiglitof  lien.  An  innkeeper,  like  a  common  carrier,  is  entitled  to  a  right  of  lien 
upon  the  goods  of  the  guest,  and  may  detain  them  for  what  is  due  to 
him  for  the  lodging  and  entertainment  provided,  for  the  guest,  until 
the  debt  is  paid.  York  v.  Grindstone,  1  Salk.  388.  Thompson  v.  Lacy, 
3  B.  and  A.  285.  Nor  can  the  guest  defeat  this  right  by  directing  that 
the  horse  shall  not  have  any  more  food,  but  he  shall  pay  for  it  after- 
wards, otherwise  t^-.e  innkeeper  shall  lose  the  horse,  which  is  his  securi- 
ty. Per  Holt,  C.  J.  Skinner,  648.  But  on  the  other  hand,  the  inn- 
kcrpcr  cr.nnotseil  tlie  goods  detained  ;  for,  like  a  distress  at  common 


THE  LAW  OF  BAILMENTS.  96b. 

acts,  even  if  they  should  roh  the  guests  who  sleep  in  his 
chambers. (c)     Rigorous  as  this  law  may  seem,  and  hard 

(c)  1  Bl.  Comm.  430. 

law,  the  detention  is  only  to  insure  the  payment  due  to  the  innkeeper. 
2  Roll.  Abr.  85  A.  pi.  5  Bulst.  '207-  Bac.  Abr.  tit.  Inns.  He  has  no 
power,  therefore,  to  sell  his  guest's  horse  when  he  has  eaten  his  value, 
but  such  rig-ht  may  exist  by  special  custom,  as  in  London  and  Exeter. 
2  Roll.  Abr.  85.  (A.)  pi.  6.  Moor,  876.  Baldway  v.  Ouston,  1  Vent-  71. 
In  trover  aj^ainst  an  innkeeper,  for  the  sale  of  horses  belonging  to  his 
guests,  to  indemnify  him  for  their  keep,  which  exceeded  their  value,  it 
was  liolden  on  demurrer,  that  an  innkeeper  has  no  power  to  sell  horses, 
except  within  the  City  of  London,  and  that  when  the  horses  had  been 
once  out,  the  power  of  detaining  them  for  what  was  due  before  did  not 
subsist  at  their  coming  in  again.     Jones  v.  Pearle,  1  Sir.  556. 

The  remedies  against  an  innkeeper  for  the  loss  or  injury  of  goods  pleadings, 
are  similar  to  those  against  a  common  carrier.  See  post,  103  n-  3.  A 
master  may  maintain  an  action  in  his  own  name  for  property  stolen 
from  his  servant,  while  a  guest  at  the  defendant's  inn.  Beedle  v.  Mor- 
ris, Cro.  Jac.  224.  Drope  v.  Thaire,  Latch.  127.  Robinson  v.  Walter, 
1  Roll.  Abrid.  3.  1.  40.  Bennett  v.  Mellor,  5  T.  R.  273.  But  it  ap- 
pears that  if  a  person  take  another's  horse  to  an  inn,  without  the  own- 
er's consent,  where  it  is  stolen,  the  owner  cannot  maintain  an  action 
against  the  innkeeper,  for  he  was  not  his  guest.  1  Roll.  Abr.  S.  1.  32. 
See  1  Com.  Dig.  297.  Yelv.  162.  In  an  action  against  an  innkeeper 
for  property  stolen  out  of  his  inn,  the  declarations  must  allege  that  he 
kept  a  common  inn.  Saunders  v.  Spencer,  Dyer,  266.  C.  but  the  cus- 
tom of  the  realm  need  not  be  set  out,  and  if  it  is,  a  mis-recital  will  not 
prejudice  the  case.     Latch.  127.  Chitty  on  Pleading,  2  vol'.  322.  n.  e. 

In  an  action  of  trover  against  an  innkeeper  for  a  horse  detained  for 
his  keep,  a  denial  is  not  evidence  of  a  conversion,  unless  the  plaintiff 
tender  what  the  horse  has  eaten  out,  and  it  is  a  question  for  the  jury 
to  determine  whether  sufficient  were  tendered,  Anon.  2  Show.  161. 
Buller's  Nisi  Prius,  Bridgeman's  Ed.  72. 

To  sustain  this  action,  the  plaintiff  must  prove  all  the  material  alle-  Evidence, 
gations  in  his  declaration,  as,  in  addition  to  proof  of  the  loss  of  the 
goods,  that  the  defendant  kept  a  common  inn,  and  that  he,  his  son,  or 
servant,  was  a  guest  at  the  time,  and  that  the  goods  were  brought  witli- 
ia  the  inn,  and  remained  under  the  care  of  the  defendant.  Buller  N.  P. 
72.  Bridgeman's  Ed.     But  it  is  not  necessary  to  prove  negligence  on 


96  THE  LAW  OF  BAILMENTS. 

as  it  may  actually  be  in  one  or  two  particular  instant'c<?. 
it  is  founded  on  the  great  principle  of  public  utility,  to 
vrhich  all  private  considerations*  ought  to  yield ;  for 
travellers,  who  must  be  numerous  in  a  rich  and  com- 
mercial country,  are  obliged  to  rely  almost  implicitly 
on  the  good  faith  of  innholders,  whose  education  and 
morals  are  usually  none  of  the  best,  and  who  might 
have  frequent  opportunities  of  associating  with  ruffians  or 
pilferers,  while  the  injured  guest  could  seldom  or  never 
obtain  legal  proof  of  such  combinations,  or  even  of  their 
7iegKgence,  if  no  actual  fraud  had  been  committed  by 
them.  Hence  the  Prsetor  declared,  according  to  PoM- 
poxius,  his  desire  of  securing  the  public  from  the  dis- 
honesty of  such  men,  and  by  his  edict  gave  an  action 
against  them,  if  the  goods  of  travellers  or  passengers 
were  lost  or  hurt  by  any  means,  except  damno  fataJi,  or 
by  inevitable  accident  ;  and  Ulpian  intimates,  that  even 
this  severity  could  not  restrain  them  from  knavish  prac-' 
tices  or  suspicious  neglect. (<^) 

((/)  D.  4.  9.  Land  3.  (6) 


the  part  of  llie  innkeeper,  per  Bu'.ler,  J.  in  Bennett  v.  Mellor,  5  T.  R. 
27C."  Tiie  loss  of  the  goods  being  prima  fade  evidence  of  negligence 
on  his  part,  which  it  is  incumbent  upon  him  to  repel  by  showing  that 
the  loss  was  not  occasioned  by  his  fault,  or  that  of  his  servants-  See 
p.  96. 

(())  The  comment,  and  the  complaint,  of  Ulpian  arc  thus  expressed  . 
"  Maxima  utilitas  est  hujiis  edicti :  quia  neccsse  est  plcrumque  eorum 
"  fidein  st-qiii,  et  res  cus  tod  ice  eorum  commiUr-re.  Neque  quisquam 
"  putet  graviterhoc  adversus  eos  constitutum  :  nam  esl  in  ipsoriim  cr- 
"  iiirio,  nr,  quern  recipiant,  et  nisi  hoc  csset  slalulum,  materia  daretur 
"  cum  fiirilnis,  adversus  eos  quos  rccipiunt  coeundi :  cum  ncnunc  qni- 
"  dem  abstincant  hujusmodi  fraudibus."  It  will  be  obvious  that  the 
part  ofL'Ipian's  reason  "  v?«j?i  cs/,,"  &c.  iacludes  nn  option  of  receiving 
or  refusing  guests,  in  which  the  Roman  r.auponcs  differed  from  our  mo- 
dern innkeepcrsj  tlie  latter  being  liable  to  enaction  if  they  refuse, 


THE  LAW  OF  BAILMENTS.  9*6 

In  all  such  cases,  however,  it  is  competent  for  the 
innholder  to  repel  the  presumption  of  his  knavery  or 
default,  by  proving  that  he  took  ordinary  care,  or  that 
the  force  which  occasioned  the  loss  or  damage,  was  truly 
irrensiible.ii:) 

When  a  private  man  demands  and  receives  a  com- 
pensation for  the  hare  custody  of  goods  in  his  warehouse 
or  store-room,  this  is  not  properly  a  deposit,  but  &  hiring 
of  care  and  attention:  it  may  be  called  locatio  custodite, 
and  might  have  been  made, a  distinct  branch  of  this  last 
sort  of  bailment,  if  it  had  not  seemed  useless  to  multi-  [  9^  ] 
ply  subdivisions  ;  and  the  bailee  may  still  be  denomina- 
ted locator  opera:,  since  the  vigilance  and  care  which  he 
lets  out  for  pay,  are  in  truth  a  mental  operatio7i.  What- 
ever be  his  appellation,  either  in  English  or  Latin,  he  is 
clearly  responsible,  like  other  interested  bailees,  for  ordi- 
nary ne2rliffence;(7)  and  althourrh  St.   German  seems  to  „ 

y        o    o             '\    /                             ^  Remarks   ou 

^ St.   German. 

without  an  adequate  reason,  to  admit  and  accommodate  a  traveller. 
Black.  Com.  vol.  3.  p.  164.  5  Term  Rep.  276. 

(7)  A  warehouseman,  or  depositary  of  goods  for  hire,  is  responsible 
only  for  ordinary  negligence,  and  consequently  is  not  liable  for  a  loss 
arising  from  accident,  where  he  is  in  no  default. 

A  common  carrier,  from  Stourpoint  to  Manchester,  undertook  to 
carry  goods  from  the  former  to  the  latter  place,  and  to  forward  them 
from  thence  to  Stockport.  Upon  his  arrival  at  Manchester,  the  goods 
were  deposited  in  his  warehoutc  to  await  an  opportunity  of  sending 


[(u)  Quere.  Is  the  innkeeper  liable  for  losses  occasioned  by  com- 
vion  robbery  ?  I  have  met  with  no  adjudicated  cases  on  this  point ;  but  I 
sec  no  reason  why  he  should  not  be  liable  as  well  as  a  common  carrier. 
The  rule  of  the  Code  Napoleon  appears  to  be  founded  on  reason,  and 
to  draw  the  proper  line  of  distinction  on  this  subject.  Where  the  rob- 
bery is  by  an  armed  or  superior  force,  the  innkeeper  is  not  liable.  "  lis 
"  no  sont  pas  responsable  des  vols  faits  avec  force  armee  ou  autrg  force 
"  majeure."    Code  Napoleon,  Livre  2.  tit.  9  ch.  2  s.  5.] 


97  THE  LAW  OF  BAILMENTS. 

make  no  difference  in  this  respect  between  a  keeper  of  goods 
Jor  hire,   and  a  simple  depositary  ;  yet  he  uses  the  word 


them  forward  by  the  Stockport  carrier,  there  being  none  there  at  that 
time,  to  whom  g-oods  sent  from  Stourpoiot  to  go  beyond  Manchester 
were  immediately  delivered,  on  payment  of  the  price  of  the  carriage 
from  Stourpoint  to  Manchester.  No  distinct  price  was  charged  for 
the  goods  while  they  were  in  the  warehouse  at  Manchester,  nor  would 
they  be  deposited  there,  if  the  Stockport  carrier  was  ready  to  receive 
them  upon  their  arrival  at  that  place-  The  goods,  while  they  remained 
in  the  warehouse,  and  before  they  c^uld  be  forwarded  in  the  usual  way, 
■were  destroyed  by  an  accidental  fire.  The  carrier  was  holden  not  to 
be  liable  for  the  loss,  for  his  duty  as  a  carrier  having  terminated,  the 
depositing  the  goods  in  his  warehouse  invested  him  only  with  the 
character  of  a  warehouseman,  and  in  that  capacity  he  was  not  responsi- 
ble for  an  injury  arising  from  no  want  of  negligence  on  his  part.  Gar- 
side  V.  The  Proprietors  of  the  Trent  and  Mersey  Navigation,  4  T.  R 
581.  Vide  Hyde  v.  The  Trent  and  Mersey  Navigation  Company,  5  T. 
K.  389.  Roskell  v.  Waterhouse,  2  Stark.  N.  P.  C.  462.  So  where  a 
quantity  of  ginseng,  deposited  in  the  defendant's  warehouse,  was  de- 
stroyed by  rats,  notwithstanding  the  defendant  took  the  precaution  to 
shut  the  lid  of  the  bos  every  night,  after  it  had  been  opened  during  the 
day  by  the  owneV,  for  the  purpose  of  showing  it  to  purchasers,  and 
adopted  reasonable  precautions  to  destroy  vermin,  he  was  holden  not 
liable  for  the  damage,  since  the  responsibility  of  a  warehouseman  was 
not  similar  to  that  of  a  common  carrier,  and  that  he  had  exerted  all  due 
and  common  diligence  for  the  preservation  of  the  commodity.  CailifF 
V.  Danvcrs,  Peake,  N.  P.  C.  114.  See  Finucane  v.  Small,  1  Esp.  N. 
P,  C.  315.  ante  p.  76.  n.  9.  The  liability  of  a  warehouseman  commen- 
ces the  instant  the  goods  are  placed  in  his  hands,  and,  in  the  case  of 
goods  delivered  by  a  carman,  attaches  from  the  time  the  crane  is  ap- 
plied to  raise  them  into  the  warehouse.  From  that  moment  he  becomes 
liable  for  any  loss  or  injury  they  may  stistain  by  means  of  his  default, 
and  it  is  no  defence  that  they  were  injured  by  falling  into  the  street 
from  the  breaking  of  the  tackle;  the  carman  who  brought  the  goods 
having  refused  the  offer  of  slings  which  was  made  for  further  security. 
Thomas  v.  Day,  4  Esp.  N.  P.  C.  262.  In  an  action  against  a  deposita- 
ry of  goods  for  hire,  positive  evidence  of  negligence  must  be  given  ;  for 
mere  proof  of  the  loss  of  the  goods  is  not  sufficient  to  put  the  defendant 
on  his  defence-    Finucane  v.  Small,  1  Esp.  N.  P-  C.  316. 


THK   LAW  OF  BAILMENTS.  97a. 

.,--■ 

DEFAULT,  like  the  culpa  of  the  Romans,  as  a  generical 
term,  and  leaves  the  degree  of  it  to  be  ascertained  by 
the  rules  of  law.(e) 

In  a  sentence  immediately  following,  he  makes  a  very 
material  distinction  between  the  two  contracts ;  for, 
"  if  a  man,"  says  he,  "  have  a  certain  recompense  for  the 
"  keeping  of  goods,  and  promise  at  the  time  of  delivery, 
"  to  re-deliver  them  safe  at  his  peril,  then  he  shall  be 
"  charged  with  all  chances  that  may  befall ;  but  if  he 
"  make  that  promise,  and  have  nothing  for  keeping 
"  them,  he  is  bound  to  no  casualties  but  such  as  are  wil- 
"  ful,  and  happen  by  his  oion  default :"  now,  the  word 
PERIL,  like  jJ^ficulum,  from  which  it  is  derived,  is  in 
itself  ambiguous,  and  sometimes  denotes  the  lisk  of  in- 
evitable mischance,  sometimes  the  danger  arising  from  a  f  98  "I 
wa7it  of  due  circumspection  ;  and  the  stronger  sense  of  the 
word  was  taken  in  the  first  case  against  him  who  uttered 
it :  but  in  the  second,  where  the  construction  is  favour_ 
able,  the  milder  sense  was  justly  preferred. f/^  Thus, 
when  a  person,  who,  if  he  were  wholly  uninterested, 
would  be  a  inandatary,  undertakes  for  a  reward  to  per- 
form any  work,  he  must  be  considered  as  bound  still 
more  strongly  to  use  a  degree  of  diligence  adequate  to  the 
performance  of  it :  his  obligation  must  be  rigorously 
construed,  and  he  would,  perhaps,  be  answerable  for 
slight  neglect,  where  no  more  could  be  required  of  a 
mandatary  than  ordinary  exertions.  This  is  the  case  of  Law  cc»ncern- 
commissioners,    factors, (8)   and   bailiffs, (9)  when   their  traders. 

(e)  Doct.  and  Stud,  where  before  cited. 
(/)  See   before,  p.  45. 

(8)  See  Mainwaring  v-  Brandon,  3  J.  B.  Moore,  123.  Moore  v. 
iMourgue,  2  Cowp.  479-  Boville  and  another  v.  Bradbury,  1  Stark. 
N.  P.  C.  136. 

(9)  A  bailiff  is  a  servant,  who  lias  administration  and  charg;e  of  lands, 

15 


98  THE  LAW  OF  BAILMENTS. 

undertaking  lies  in  feasance,  and  not  simply  in  custody: 
hence,  as  peculiar  care  is  demanded  in  removing  and 
raising  a  fine  column  of  granate  or  porphyry,  without 
injuring  the  shaft  of  the  capital,  Gaim  seems  to  exact 
more  than  ordinary  diligence  from  the  undertaker  of 
such  a  work  for  a  stipulated  compensation. ('g^  Lord 
Coke  considers  a  factor  in  the  light  of  a  servant,  and 
thence  deduces  his  obligation  ;  but,  with  great  submis- 
sion, his  reward  is  the  true  reason,  and  the  nature  of  the 
business  is  the  just  measure,  of  his  duty  ;(A)  which  can- 
not, however,  extend  to  a  responsibility  for  mere  accident 
or  open  robbery  ;(i)  and  even  in  the  case  of  theft,  a  fac- 
tor has  been  holden  excused  when  he  showed  "that  he 
*'  had  laid  lip  the  goods  of  his  principal  in  a  warehouse, 
"  out  of  which  they  Avere  stolen  by  certain  malefactors 
*^'  to  him  unknown,"  (A:) (v) 

ig)  D.  19.  2.  7.  (/t)  4  Rep.  84.     Ld.  Raym.  91S. 

(i)  I  Inst.  89.  a.  (A;)  1  Vent.  121.  Vere  and  Smith, 


goods,  and  chattels,  to  make  the  best  benefit  for  the  owner.  Against 
such  bailiff  an  action  of  account  lies  for  the  profits  he  hath  raised  or 
made,  or  might  by  his  industry  or  care  have  reasonably  raised  or  made, 
his  reasoTiablc  charges  and  expenses  being  deducted.  See  1  Inst. 
172.  a. 

[(v)  Agents  and  Facton — responsibility  of.  The  responsibility  of 
an  agent  may  be  limited  or  extended  by  an  agreement  made  at  the  time 
of  entering  into  the  contract;  it  being  a  maxim  that  conventio  vincet 
legem  ;  he  may,  accordingly,  by  express  agreement,  make  himself 
answerable  for  inevitable  accidents  ;  but  such  agreement  must  clearly 
appear;  it  cannot  be  presumed.  Pothicr  du  Contrat  dc  Mandat, 
n.  50.  Bridge  v.  Austen,  4  Mass.  Rep.  114.  But  an  agreement  to 
exempt  from  responsibility  for  fraud,  is  indecent,  and  can  have  no  ef- 
fect.    Nicholson  v.  Willan,  5  East,  513. 

Where  a  principal  is  informed  by  his  agent  of  what  he  has  done,  the 
principal  must  express  his  dissatisfaction  in  a  reasonable  time ;   other- 


THE  LAW  OF  BAILMENTS.  ^8 

Wliuere  skill  is  required,  as  Avell  as  care,  in  performing 
the  work  undertaken,  the  bailee  for  hire  must  be  suppo- 

wise  bis  assent  to  his  agent's  act  will  be  presumed.  Cairnes  &  Lord 
v.Bleecker^l2  Johns.  Rep.  300.  Vianna  v.  Barclay, 2  Covven's  Rep.  281. 

Where  an  agent  is  authorized  to  deliver  goods  to  a  third  person, 
on  receiving  sufficient  security  for  the  amount,  and  the  agent  delivers 
the  goods,  but  does  not  take  sufficient  security,  trover  will  not  lie 
against  the  agent  for  the  goods,  but  the  proper  remedy  is  case.  Ibid. 
Also,  5  Munf.  Rep.  34. 

Where  the  power  of  an  agent  is  limited  by  instructions,  he  is  bound 
to  pursue  those  instructions.  If  he  deviate  from  his  orders,  though 
with  a  view  to  his  employer's  interest,  he  will  be  liable  for  consequen- 
ces. Sadock  V.  Burton,  Yelv.  202.  Emeregon,  tom.  1.  page  143.  Wil- 
kinson et  al.  v.  Neal,  1  Bay  Rep.  169.  Liver,  on  Agency,  368. 

Necessity,  however,  will  sometimes  justify  a  factor  in  acting  contrary 
to  orders ;  particularly  if  induced  by  some  cause  not  in  the  contempla- 
tion of  the  principal  at  the  time  he  gave  the  orders.  Dusar  et  al.  v. 
Perit,  4  Bin.  Rep.  361.  Manella,  Pujals  &  Company  v.  Barry,  3  Cranch 
415. 

An  agent  employed  to  effect  an  insuranjce,  for  which  he  is  to  have  no 
remuneration,  is  not  merely  answerable  for  wilful  negligence,  but  also 
for  inadvertence,  mistake,  and  misconstruction  of  orders,  provided  the 
instructions  are  sufficiently  explicit.  Rundle  and  others  v.  Moore  et 
al.  3  Johns.  Ca.  35, 

A  factor  employed  to  make  sale  of  goods  on  consignment,  is  nojt 
only  bound  to  good  faith,  but  also  to  reasonable  diligence.  If,  there- 
fore, notwithstanding  an  authority  to  .sell  on  credit,  he  sell  to  one  who 
is  insolvent  or  doubtful,  and  the  fact,  upon  reasonable  diligence,  might 
have  been  known,  he  is  answerable  for  the  loss.  In  such  case  the  sale 
will  in  law  be  deemed  a  sale  on  account  of  the  factor.  Burrill  v, 
Phillips,  1  Gallis.  Rep.  3C0.  Leverick  v.  Meigs  &  Read,  \  Cowea 
Rep.  645. 

Where  a  factor  sells  goods  on  credit,  according  to  the  usual  course 
of  trade,  where  he  has  no  orders  to  the  contrary,  he  shall  not  be 
liable  in  case  of  the  purchaser's  becoming  insolvent.  James  & 
Shoemaker  v.  McCredie  &,  Co.  1  Bay  Rep.  294.  Godenou  v.  Ty- 
ler, 7  Mass.  Rep.  36.  Vanalenetal.v.  Vanderpool,  6  Johns.  Rep.  69. 

But  a  factor  is  bound  to  sell  for  ready  money,  unless  he  has  dis- 
cretionary powers,  or  orders  to  the  contrary,  or  unless  the  usage  and 
coujse  of  trade  at  the  place  where  the  sales  are  made  will  warrant. 


9n  THE   LAW  OF   BAILMENTS. 

sed  to  have  engaged  himself  for  a  due  application  of  tlit 
necessary  art :  it  is  his  own  fault  if  he  undertake  a  work 


a  sale  on  credit.     James  v.  BIcCredic,  1  Bay,  294.  and  see  Grecly 
V.  Bartlett,  1  Green.  Fep.  172. 

A  usage  proved  among  factors  of  allowing  a  week  or  fortnight  to  pay 
where  the  sale  has  been  for  cash,  does  not  authorize  a  factor  to  deviate 
from  positive  instructions  to  sell  for  cash.  Barksdale  v.  Brown,  1  Nott 
&  McCord,  617.  See  the  case  of  Clark  v-  Van  Northwick,  1  Pick. 
Rep.  3 13. 

An  agent  vpho  had  received  depreciated  paper  money  during  the  revo^ 
lutionary  war,  was  held  not  to  be  liable  for  it  in  any  other  way.  Bellin- 
ger V.  Gervais,  1  Dess.  Eq.  Kep.  174. 

]f  a  factor  receives  and  sells  the  goods  of  his  principal,  without  any 
special  orders  as  to  remittance,  upon  an  understanding  express  or  im- 
plied, that  he  is  to  hold  the  proceeds  to  the  order  of  his  principal,  and 
he  does  nothing  in  violation  of  those  orders,  or  to  disable  himself  from 
complying  with  them  when  received,  and  transmits  ai  true  account  of 
sales  in  a  reasonable  time,  according  to  the  course  of  business,  and  is 
ready  to  remit  or  answer  draughts  upon  him,  no  action  will  lie  against 
him  for  the  balance  in  his  hands.  Clark  v.  Moody,  17  Mass.  Rep. 
145.  And  see  Ferris  v.  Parris,  10  Johns.  Rep.  285.  And  see  fur- 
ther as  to  liability  of  agents,  Cheviot  v.  Brooks,  1  Johns.  Rep.  364. 
3  Mass.  Rep   434. 

Authority  of  Agents  and  Factors. — The  authority  of  a  general 
agent  is  restrained  to  the  transactions  and  concerns  appurtenant  to 
the  business  of  the  principal.  Odiorne  v.  Maxcy,  13  Mass.  Rep.  178. 
Ad  agent  constituted  for  a  particular  purpose,  and  under  a  power 
limited  and  circumscribed,  cannot  bind  his  principal,  by  any  act  in 
which  he  exceeds  his  authority,  Thompson  v.  Stewart,  3  Conn.  Rep. 
171.  Reals  v.  Allen,  18  Johns.  Rep.  363.  Leverick  v.  Meigs  & 
Read,  1  Cowen,  645. 

A  factor  in  a  foreign  country,  from  whom  property  consigned  to  him 
is  taken  for  a  breach  of  the  revenue  laws  of  the  country,  must  never- 
theless account  for  the  property,  unless  he  can  show  that  in  the  man- 
agement of  it  he  conformed  to  the  laws  of  such  country  ;  or  that  he 
was  authorized  by  special  instructions  from  his  principal  to  act  as  he 
did ;  or  that  the  property  could  not  be  managed  in  any  other  manner 
than  that  in  which  he  attempted  to  manage  it;  and  that  this  was  a  fact 
known  to  his  principal  when  he  made  the  consignment.  Wellman  v 
Niitting,  3  Mass.  Rep.  434.1 


THE  LAW  OF  BAILMENTS.  98 

above  his  strength  ;  and  all  that  has  before  been  adv^an- 
ced  on  this  head  concerning  a  mandatary,  may  be  appli- 
ed with  much  greater  force  to  a  conductor  operis  facien- 
di.{l)  I  conceive,  however,  that,  where  the  bailor  has 
not  been  deluded  by  any  but  himself,  and  voluntarily 
employs  in  one  art  a  man  who  openly  exercises  another, 
his  folly  has  no  claim  to  indulgence  ;  and  that,  unless  the 
bailee  make  false  pretensions,  or  a  special  undertaking, 
no  more  can  fairly  be  demanded  of  him  than  the  best  r  qq  t 
of  his  ability. (m)  The  case  which  Sadi  relates  with 
elegance  and  humour  in  his  Gulistan  or  Rosegarden, 
and  which  Puffendorf  cites  with  approbation, (?i)  is  not 
inapplicable  to  the  present  subject, "  and  may  serve  as  a 
specimen  of  Mahomedan  law,  which  is  not  so  different  L  ^"^  J 
from  ours(l)  as  we  are  taught  to  imagine ;  "  A  man  ..  ^ 
"  who  had  a  disorder  in  his  eyes,  called  on  a  farrier  for  law. 
"  a  remedy  ;  and  he  applied  to  them  a  medicine  com- 
"  monly  used  for  his  patients  :  the  man  lost  his  sight, 
"  and  brought  an  action  for  damages ;  but  the  judge 
said,  "No  action  lies,  for  if  the  complainant  had  not 
"  himself  been  an  ass,  he  would  never  have  employed  a 
'■'■  farrier  ;''"'  and  Sadi  proceeds  to  intimate,  that,  "  if  a 
"  person  will  employ  a  common  mat-ma'ker  to  weave  or 
"  embroider  a  fine  carpet,  he  must  impute  the  bad 
"  workmanship  to  his  own  folly ."(o) 

In  regard  to  the  distinction  before  mentioned  between 

{t)  Spondet,  say  the  Roman  lawyers,  periliam  artis. 
(m)  P.  54  (7J)  De  Jure  Nat.  et.  Gent  lib.  5.  cap.  5.  s.  3. 

(o)  Rosar.  Polit.  cap.  7.  There  are  uumberless  tracts  in  Arabic,  Persian, 
and  Turkish,  on  every  branch  of  jurisprudence  ;  from  the  best  of  wliich  it 
would  not  be  difficult  to  extract  a  complete  system,  and  to  compare  it  with 
our  own :  nor  would  it  be  less  easy  to  explain  in  Persian  or  Arabic  such 
parts  of  our  English  law,  as  either  coincide  with  that  of  the  Asiatics,  or 
are  manifestly  preferable  to  it. 

f  1)  See  Slater  v.  Baker,  2  Wils.  359.    Seare  y.  Prentice,  8  East,  343, 


IQP  THE  LAW  OF  BAILMENTS. 

the  «on-fetisance  and  the  7?Jis-feasance  of  a  workman, (^) 
it  is  indisputably  clear,  that  an  action  lies  in  both  cases  for 
a  reparation  in  damages,  whenever  the  work  was  under- 
taken for  a  reward,  either  actually  paid,  expressly  stipu- 
lated, or,  in  the  case  of  a  common  trader,  strongly  im- 
[  101  ]  plied;  of  which  Blackstone  gives  the  following  in- 
stance :  "  If  a  builder  promises,  undertakes,  or  assumes 
"  to  Caius  that  he  will  build  and  cover  his  house  within 
"  a  time  limited,  and  fails  to  do  it,  Caius  has  an  action 
♦*  on  the  case  against  the  builder  for  this  breach  of  his 
"  express  promise,  and  shall  recover  a  pecuniary  satis- 
*'  faction  for  the  injury  sustained  by  such  delay."(5') 
The  learned  author  meaned,  I  presume,  a  common  build- 
er, (2)  or  supposed  a  consideration  to  be  given  ;  and  for 
this  reason  I  forbore  to  cite  his  doctrine  as  in  point  on 
the  subject  of  an  action  for  the  no7i-performance  of  a 
mandatary,  (r)  (\v) 
Rujesanddis-  Before  we  leave  this  article,  it  seems  proper  tore- 
mark,  that  every  bailee  for  pay,  whether  conductor  rei 
or  conductor  operis,  must  be  supposed  to  know  that  the 
goods  and  chattels  of  his  bailor  are  in  many  cases  dis- 
trainable  for  rent,  if  the  landlord,  who  might  otherwise 

(p)  P.  54,  kc. 

(q)  3  Comm.  157.  (r)  P.  56,  57.  61. 


(2)  See  ante,  p.  54.  n.  (4.) 

[(w)  In  Ihe  case  of  Thorne  and  Thome  v.  Dias,  4  Johns.  Rep.  83.  *>^ 
Ch.  J.  Kent  combats  the  doctrine  of  Sir  W.  Jones,  and  shows  con- 
clusively, that  by  the  common  law,  a  mandatary,  or  one  who  undertakes 
to  do  an  acl!  for  another  without  reward,  is  not  answerable  for  omitting 
to  do  the  act;  and  is  only  responsible  where  he  attempts  to  do  it,  and 
docs  it  amiss.  In  Rutgers  v.  Lucet,  2  Johns.  Ca.  92.  the  court 
sav,  that  a  mere  agreement  -to  undertake  a  trust,  in  futuro,  without 


THE  LAW  OF  BAILMENTS.  101 

be  shamefully  defrauded,  find  them  on  the  premises  ;(s) 
and,  as  they  cannot  be  distrained  and  sold  without  his 
ordinary  default  at  least,  the  owner  has  a  remedy  over 
against  him,  and  must  receive  a  compensation  for  his 
loss  :{t)  even  if  a  depositary  were  to  remove  or  conceal 
his  own  goods,  and  those  of  his  depositor  were  to  be 
seized  for  rent-arri^re,  he  would  unquestionably  be 
bound  to  make  restitution ;  but  there  is  no  obligation  in  [  102  ] 
the  bailee  to  suggest  ivise  precautio7is  against  inevitable 
accident ;  and  he  cannot,  therefore,  be  obliged  to  advise 
insurance  from  fire  ;  much  less  to  insure  the  things  bailed 
without  an  authority  from  the  bailor. 

It  may  be  right  also  to  mention,  that  the  distinction, 
before  taken,  in  regard  to  loans, {u)  between  an  obliga- 
tion to  restore  the  specific  things,  and  a  power  or  neces- 
sity of  returning  others  equal  in  value,  holds  good  likewise 
in  the  contracts  of  hiring  and  depositing :  in  the  first 
case,  it  is  a  regular  bailment ;  in  the  second,  it  becomes 
a  debt.  Thus,  according  to  Alfenus  in  his  famous  law.  Celebrated 
on  which  the  judicious  Bynkershoek  has  learnedly  com-  '''^^°^"^^'^^""*- 
mented,  "  if  an  ingot  of  silver  be  delivered  to  a  silver- 
"  smith  to  make  an  urn,  the  whole  property  is  transfer- 
"  red,  and  the  employer  is  only  a  creditor  of  metal  equal-. 
"  ly  valuable,  which  the  workman  engages  to  pay  in  a 
"  certaiia  shape  :"(zt')  the  smith  may  consequently  apply 

(s)  Burr.  1498,  Sic  (/)  3  Bl.  Comm.  8.  ^ 

(u)  P.  64,  65. 

(le)  D.  19.  2.  81.     Bynk.  Obs.  Jur.  Rom.  lib.  VIII. 


compensation,  is  not  obligatory ;  but  when  once  undertaken,  and  the 
trust  actually  entered  upon,  the  bailee  is  bound  to  perform  it  according 
tt)  the  terms  of  his  agreement.  See  also,  Elsee  v.  Gatwood,  5.  Term 
Rep.  150.  opinion  of  Ashurst,  J.  and  1  Esp.  N.  P.  Cas.  75. 

A  mere  mandatary  who  receives  no  reward,  is  liable  only  for /rand 
or  ^ross  neglect.      Stanton  t.  Bell,  2  Hawks.  145.] 


102  THE  LAW  OF  BAILMENTS. 

it  to  his  own  use  ;  but  if  it  perish,  even  by  unavoidable 
mischance  or  irresistible  violence,  he,  as  owner  of  it, 
must  abide  the  loss,  and  the  creditor  must  have  his  urn 
in  due  time.  It  would  be  otherwise,  no  doubt,  if  the 
same  silver,  on  account  of  its  peculiar  fineness,  or  any 
uncommon  metal,  according  to  the  whim  of  the  owner, 
[  103  ]  were  agreed  to  be  specifically  redelivered  in  the  form  of 
a  cup  or  a  standish.(x) 

Hiring  of  car-        3^     Locatio    OVcHs    MERCIU3I    VEHENDARUM    is   a   COU- 
nage.  -i 

tract  which  admits  of  many  varieties  in  form,  but  of 
none,  as  it  seems  at  length  to  be  settled,  in  the  substan- 
tial obligations  of  the  bailee. 


[(x)  If  a  person  having  charge  of  the  property  of  another,  so  con- 
founds it  with  his  own,  that  it  cannot  be  distinguished,  he  must  bear 
all  the  inconvenience  of  the  confusion,  and  he  must  distinguish  his  own 
property,  or  lose  it;  and  if  damages  are  given  against  him,  it  will  be  to 
the  utmost  value  of  the  article.  Hart  v.  Ten  Eyck,  2  Johns.  Ch.  Ca. 
108.     Lupton  V.  White,  15  Ves.  Rep.  32  . 

But  where  no  inconvenience  results  to  the  owner  from  the  mixture, 
and  the  property  is  lost  by  an  accident  totally  unconnected  with  the  mix- 
ture, there  appears  to  be  no  good  reason  why  the  bailee  should  bear 
the  "loss.  This  distinction  is  sanctioned  by  the  opinion  of  Ch  J. 
Spencer,  in  the  case  of  Seymour  v.  Brown,  19  Johns.  Rep.  44.  Thus, 
where  a  person  sent  to  a  miller  a  quantity  of  wheat,  to  be  exchanged 
for  flour,  and  the  miller  mixed  it  with  a  mass  of  wheat  of  the  same 
quality  belonging  to  himself  and  others  ;  but  before  the  flour  was  de- 
livered to  the  plaintiif,  the  mill  of  the  defendant,  with  all  its  contents, 
wheat  and  rye  flour,  was  entirely  destroyed  by  fire,  from  some  un- 
known cause,  and  without  any  fault  or  negligence  on  the  part  of  the 
defendant;  it  was  held  that  the  defendant  was  not  responsible  for  the 
loss  of  the  plaintiff's  wheat,  there  being  no  contract  of  sale  by  which 
the  property  was  transferred  to  the  defendant.  A  similar  decision  was 
also  made  in  the  case  of  Slaughter  v.  Green  and  others,  1  Rand.  Vir- 
gin, Rep.  3.  where  wheat  was  delivered  at  a  mill  to  be  ground,  upon  an 
agreement  that  the  miller  should  return  to  the  farmer  a  given  quantity 
of  flour  for  so  many  bushels  of  wheat,  the  miller  was  considered  as  a 
bailee,  and  not  a  purchaser ;  and  therefore  the  wheat  being  consumed 


THE  LAW  OF  BAILMEiNTS.  103 

A  Carrier  for  hire  ought,  by  the  rule,  to  be  responsible 
only  for  ordinary  neglect  ;(8)  and  in  the  time  of  Henry 


ty  accidental  fire,  was  held  not  responsible  for  it.  And  this  conclu- 
sion would  not  be,  altered  by  au  understandipg  between  the  parties, 
that  the  miller  is  not  bound  to  return  flour  made  from  that  identical 
wheat,  but  flour  of  a  certain  quality  made  from  any  wheat  in  the  mill. 
Where  wheat  is  delivered  at  a  mill  to  be  ground,  upon  an  agree- 
ment that  the  miller  shall  return  to  the  farmer  a  g-iven  quantity  of  flour 
for  so  many  bushels  of  wheat,  tlie  miller  is  a  bailee,  and  not  a  purchas- 
er; and  therefore,  if  the  wheat  be  consumed  by  accidental  fire,  the 
miller  will  not  be  responsible  for  it-  The  conclusion  will  not  be  alter- 
ed by  an  understanding  between  the  parties,  that  the  miller  is  not 
bound  to  return  flour  made  from  that  identical  wheat,  but  flour  of  a 
certain  quality  made  from  any  wheat  in  the  mill.  Slaughter  v.  Green 
et  al.  1  Randolph's  Rep.  3.  See  also  the  case  of  T.  &  H,  Seymour  v. 
Brown  et  al.  19  Johni.  Rep.  44. J 


(3)  This  extensive  and  important  species  of  bailment,  far 
more  so  than  any  of  the  others,  from  its  daily  concurrence  to  an 
immense  extent  in  this  great  commercial  country,  and  the  nume- 
rous questions  of  importance  which  are  continually  arising  upon 
it,  requires  to  be  examined  more  in  detail.  For  this  purpose, 
in  the  examination  of  the  subject,  it  is  proposed  to  consider,  first, 
who  are  those  persons  who  may  be  considered  as  common  carriers, 
or,  who,  not  being  such,  nevertheless  render  themselves  liable  to 
similar  duties  by  their  private  engagements  ;  secondly,  the  duties 
af  a  common  carrier ;  and,  thirdly,  his  rights.  As,  however,  the 
effect  of  a  bailment  of  this  nature  is  very  frequently  to  introduce 
another  party,  who  is  entitled  to  demand  a  delivery  of  the  goods, 
and  to  insist  upon  a  compensation  for  the  loss  or  damage  they 
may  sustain  in  the  course  of  their  conveyance,  it  is  proposed  to 
consider,  fourthly,  the  eflect  of  a  delivery  of  goods  to  a  carrier 
on  behalf  of  a  purchaser,  as  between  the  consignor  and  the  con- 
signee, and  the  right  of  the  consignor  to  stop  them  intransittr; 
and  in  the  last  place  will  be  considered,  the  remedies  which  mav 

16 


103  THE  LAW  OF  BAILMENTS. 

VIII.,  it  appears  to  have  been  generally  holden,  *'  that 
"  a  common  carrier  was  chargeable,  in  case  of  a  loss  by 


be  adopted  against  the  carrier  for  the  breach  of  his  engage- 
ments, and  the  evidence  required  on  those  occasions. 
Descript'on  of  Persons  who  come  within  the  description  of  common  carriers, 
rim'"*^"  ^^^  ^^^  ^^^  persons  who  carry  goods  generally  for  liire.  But  no  spe- 
cial agreement  for  a  reward  is  requisite  to  bring  a  person  within 
this  description  ;  for,  since  he  is  entitled  by  law  to  a  reasonable 
reward,  he  is  as  much  liable  as  if  there  were  a  special  agreement 
for  a  sum  certain.  Bastard  v.  Bastard,  2  Show.  81.  Rogers  v. 
HeadjCro.  Jac  222.  Harris  v.  Packwood,  3  Taun.  272.  [Mc'- 
Cluies  v.  Hammond,  1  Ray.  Rep.  99.  Harrington  v.  Tyles, 
2  Nott  &  McC,  88.]  Within  this  class  of  persons  are  includ- 
ed the  proprietors  of  stage-waggons,  and  of  stage-coaches,  who 
carry  goods  as  well  as  passengers  for  hire,  the  master  and  own- 
er of  ships,  hoymen,  lightermen,  barge-owners,  ferrymen,  and 
wharfingers.  [But  a  person  who  receives  and  forwards  goods, 
taking  upon  himself  the  expenses  of  transportation,  for  which  he 
[  103a.  ]  receives  a  compensation  from  the  owner  of  the  goods,  but  has 
no  concern  in  the  vessels  by  which  they  are  forwarded,  or  inte- 
rest in  the  freight,  is  not  a  common  carrier.  Roberts  v.  Turner, 
12  Johns.  Rep.  232.] 

Proprietors  of.     rpj^    proprietors  of  staee-waggons  have  at  all  times  been  con- 
stage  wag-  f      f  to  oo 

gons.  sidered  as  common  carriers,  and  appear  to  be  peculiarly  the  ob- 

ject of  the  law  in  this  respect.  [If  a  waggoner  by  whom  goods 
are  sent  to  be  delivered  to  A.  sell  them  openly  in  a  street  of  a 
city  to  B.  the  sale  vests  no  property  in  the  purchaser.  Leeky 
V.  McDermott,  8  Serg.  &  Raw.  500,]  See  cases,  infra.  So 
where  a  person  who  brought  goods  to  London  on  his  private  ac- 
count,*and  on  his  return  in  the  country  took  such  goods  as  he 
could  obtain  ;  the  court  decided,  that  any  man  undertaking  for 
hire  to  carry  the  goods  of  all  persons  indifferently,  was  so  far  a 
common  carrier  as  to  protect  the  goods  from  a  distress.  Gis- 
bourne  v.  Hurst,  1  Salk.  249- 

Proprietors  of      rpj      proprietors  of  stace-coaches,  in  the  conveyance  of  pas- 
stage-coaches,  f     f  a  1  .  I    •    • 

sengers,  are  not  liable  for  the  same  responsibility  which  is  im- 


THE  LAW  OF  BAILMENTS,  lOSeu 

'•  robhenj,  only  when  he  had  travelled  by  loays  dangerous 
*^  for  robbing,  or  driven  by  night,  or  ut  any  inconvenient 


posed  upon  them  in  the  carriage  of  goods  ;  and  if  their  eraploy- 
ment  extended  only  to  the  former  service,  they  would  not  be 
considered  as  common  carriers.  Christie  v.  Griggs,  2.  Camp. 
79.  White  v.  Boulton,  Peake  N.  P.  C.  80.  Aston  v.  Heaven, 
2  Esp.  N.  P.  C.  533.  If,  however,  they  carry  goods  as  well  as 
passengers  for  hire,  they  will  come  within  that  description  ;  and 
accordingly,  in  an  action  for  the  loss  of  a  passenger's  luggage,  it 
was  decided,  that  if  a  coachman  commonly  carry  goods,  and  take 
money  for  so  doing,  he  will  be  in  the  same  case  with  a  common 
carrier,  and  is  a  carrier  for  that  purpose,  whether  the  goods  be- 
long to  a  passenger  or  a  stranger.  Per  Jones,  J.  in  Lovett  v. 
Hobbs,  2  Show.  128.  A  distinct  charge  for  the  goods  as  well . 
as  for  the  passenger  was  formerly  deemed  to  be  necessary  ;  and 
in  an  action  against  the  master  of  a  stage-coach,  for  the  loss  of 
a  trunk  belonging  to  the  plaintiff,  (a  passenger,)  which  was  dc:- 
livered  to  the  driver,  and  stolen  in  the  course  of  the  journey,  it 
was  holden  that  this  action  did  not  lie  against  the  master,  and 
that  a  stage-coachman  was  not  within  the  custom  as  a  carrier  is, 
unless  such  as  take  a  distinct  price  for  the  carriage  of  goods  as 
well  as  persons,  as  waggons  with  coaches.  Per  Holt,  C.  J.  in 
Middleton  v.  Fowler,  Salk.  282.  So  a  hackney  coachman  was 
holden  not  to  be  a  common  carrier  within  the  custom  of  the 
realm,  and  could  not  be  charged  for  the  loss  of  a  passenger's 
goods,  except  where  there  was  a  special  agreement  and  money 
paid  for  the  carriage  of  the  goods.  Per  Holt,  C.  J.  in  Upshare 
v.  Aidee,  Corny.  25.  But  since  it  may  reasonably  be  presum- 
ed, that  the  care  of  the  luggage  is  an  inducement  for  the  pas- 
senger to  take  his  place,  and  that  the  coachmaster,  like  an  inn- 
keeper (ante,  p.  94.)  includes  in  the  fare  his  charge  for  such 
responsibility  ;  the  same  principles  of  public  policy  which  invest 
him  with  the  character  and  responsibility  of  a  common  carrier, 
when  he  charges  a  distinct  price  for  the  carriage  of  goods,  would 
appear  to  require  a  similar  rule  when  no  such  charge  is  made, 


lG3b.  THE  LAW  OF  BAILMENTS. 

"  hour  ;"{x)  but  in  the  commercial  reign  of  Elizabeth, 
it  was  resolved,  upon  the  same  broad  principles  of  policy 

(x)  Doct.  and  Slud.  where  ©ften  before  cited. 


but  the  goods  are  received  as  accompanying  the  passenger.  The 
point  does  not  appear  to  have  been  judicially  decided  in  any 
modern  reported  case ;  but  Mr.  Justice  Chambre,  in  delivering 
his  opinion  in  the  case  of  Robinson  v.  Dunraore,  2  Bus.  and  Pul. 
419.  observed,  that  it  had  been  decided,  that  if  a  man  travel  in 
a  stage-coach,  and  take  his  portmanteau  with  him,  though  he  has 
his  eye  on  the  portmanteau,  yet  the  carrier  is  not  absolved  from 
his  responsibility,  but  will  be  liable  if  the  portmanteau  be  lost. 
So,  in  an  action  for  the  value  of  a  passenger's  trunk,  which  was 
stolen  in  the  course  of  the  journey,  and  for  the  carriage  of  which 
no  distiuct  charge  appears  to  have  been  made  ;  the  defendant 
insisted  that  he  was  not  responsible  for  the  loss,  inasmuch  as  he 
was  exempted  by  a  general  notice  not  to  be  liable  for  parcels 
above  the  value  of  5/.,  unless  entered  as  such  and  paid  for  accor- 
dingly :  the  plaintiff's  counsel  insisted  that  the  notice  applied 
only  to  goods  sent  to  be  carried,  and  not  to  the  case  of  a  pas- 
senger's luggage.  But  Lord  Ellcnborough  observed,  that  the 
luggage  of  passengers  came  within  the  exception.  Clark  v. 
Gray,  4  Esp.  177.  6  East,  564.  S.  C.  [The  practice  of  car- 
rying for  hire  in  a  stage-coach  parcels  not  belonging  to  passen- 
gers constitutes  the  proprietors  of  the  coach  common  carriers, 
and  they  will  be  held  liable  for  the  loss  of  such  a  parcel  by  the 
driver,  who  was  one  of  the  proprietors.  Dwight  et  al.  v.  Brews- 
ter, 1  Picker.  Rep.  50.] 
Masters  of  The  master  of  a  vessel  also  comes  within  the  description  of  a 

vessels.  common  carrier,  for  he  is  rather  in  the  nature  of  a  confidential 

officer  than  a  servant,  although  he  is  paid  by  the  owners.  In 
the  case  of  Morse  v.  Slue,  2  Lev.  69.  1  Vent.  190.  228.  Sir 
Thomas  Raymond,  220.  which  was  an  action  brought  against 
the  master  of  a  vessel  for  the  loss  of  goods  which  happened  with- 
out his  default,  it  was  objected  that  the  action  should  have  been 
brought  against  the  owners  of  the  vessel,  and  not  against  the 


THE  LAW  OP  BAILMENTS.  103b. 

and  convenience  that  have  been  mentioned  in  the  case 
of  innholders,  "  that,    if  a  common  carrier  be  robbed  of 


master,  who  was  no  more  than  a  servant  to  them  at  a  certain  sala- 
ry ;  but  the  court  decided  that  he  was  responsible  as  master, 
and  that  the  case  was  not  different  from  a  common  hoyman,  u 
common  carrier,  or  innkeeper.  See  Abbot  on  Shipping,  234. 
4th  ed. 

[Masters  and  owners  of  vessels,  who  undertake  to  car- 
ry goo  is  for  hire,  are  liable  as  common  carriers,  whether  the 
transportation  be  from  port  to  port,  within  the  state,  or  beyond 
sea,  at  home  or  abroad,  and  they  are  answerable,  as  well  by  tlie 
marine  law  as  by  the  common  law  of  England,  for  all  losses  not 
arising  from  inevitable  accidents,  or  such  as  could  not  be  fore- 
seen or  prevented.  Elliot  &  Stewart  v.  Rossell  &  Lewis,  10 
Johns.  Rep.  1.  Clark  and  others  v.  Richards,  1  Conn.  Rep. 
54.     5  Day.  Rep.  415.J 

The  owners  of  a  vessel  are  also  common  carriers  equally  with  Owners  of 

•^  vessels. 

a  carrier  by  land,  and  are  liable,  in  respect  of  the  freight,  for 

goods  spoiled  by  default  of  the  master  ;  but  they  must  be  charg- 
ed on  the  custom  of  the  realm,  or  as  usually  carrying  goods  for 
hire.  Boucher  v.  Lawson,  Ca.  temp  Hard.  1^4.  Boson  v. 
Sandford,  Salk.  440.  3  Lev.  258.  1  Show.  29.  2  Show.  478.  [  103c.  ] 
Skin.  278.  3  Mod.  321.  Carth.  58.  S.  C  See  Abbott  on 
Shipping,  231.  4th  ed.  Asa  shipmaster,  or  keelman  who  carries 
goods  from  port  to  port.  Dale  v.  Hall,  1  Wils.  281.  So  a 
hoyman,  by  the  custom  of  the  realm,  is  a  common  carrier.  1 
Roll.  Abr.  2.  c.  2.  pi.  2.  See  Wardell  v.  Moujillyan,  2  Esp.  N. 
P.  C.  693.  So  an  action  lies  equally  against  a  common  barge- 
man without  any  special  agreement,  as  against  a  common  carrier. 
Rich,  V.  Kneeland,  Cro.  Jac.  330.  Hob.  18.  And  in  the  same 
manner  it  lies  against  a  ferryman.    See  p.  108. 

[Where  the  master  of  a  vessel  received  several  hogsheads  of 
gin  on  board,  to  transport  from  Hartford  to  Boston,  at  customa- 
ry freight,  which  was  stowed  on  deck,  and  ejected  during  the 
voyage  by  reason  of  tempestuous  weather,  it  was  held  that  the 


103c.  THE  LAW  OP  BAILMENTS. 

"  the  goods  delivered  to  him,  he  shall  answer  for  the  va^ 

"  luc  of  them. "(y) 

(y)  1  Inst.  89.  a.  Mo.  40-2.  1  Ro.  Abr.  2.   Woodliefe  and  Curties. 


owners  were  liable  for  the  loss,  unless  such  stowage  were  au- 
thorized by  the  consent  of  tlie  shipper,  or  by  custom.  Barber 
V.  Brace,  3  Conn.  Rep.  9.  Smith  v.  Wright,  1  Ca.  Rep.  43. 
It  is  sufficient  to  subject  the  owner  for  the  acts  of  the  master, 
that  the  latter  is  in  fact  master  with  the  privity  of  the  owner 
without  any  special  appointment.  Clark  et  al.  v.  Richards, 
1  Conn.  Rep.  54  ] 
Wharfingers.  So,  wharfingers  are  equally  common  carriers,  between  whom 
and  other  carriers  no  distinction  can  be  made.  Ross  v.  John- 
son, 5  Burr.  2825,  And  in  an  action  for  the  loss  of  goods  acci- 
dentally destroyed  by  fire,  while  upon  the  defendants'  premises, 
who  were  wharfingers,  and  whose  duty  it  was  to  convey  the  goods 
from  the  wharf  in  their  lighter  to  the  vessel  in  the  river.  Lord 
EUenborough,  C.  J.  was  of  opinion,  upon  an  objection  being 
made  as  to  their  responsibility  for  theioss,  that  the  liability  of  a 
wharfinger,  whilst  he  has  possession  of  the  goods,  was  similar  to 
that  of  a  carrier.  xMaving  v.  Todd,  1  IN.  P.  C.  72.  See  Cobban 
V.  Downe,  a  Esp.  N.  P.  C.  41. 

aiuei  s  sei-       ^  rommon  carrier  is  responsible  for  the  acts  of  his  servant  or 
vants.  ' 

agent  whom  he  employs  in  the  execution  of  the  duty  which  be- 
longs to  him  ;  an''  no  '•ontract  will  be  implied  between  the  owner 
of  the  goods  and  the  person  whom  the  carrier  may  employ  for 
that  purpose  ;  until  they  are  porformed,  his  character  of  a  com- 
mon carrier  continues.  See  Cavenagh  v.  Such,  1  Price,  32"8. 
And  the  driver  of  a  stage-coach,  to  whom  a  parcel  is  delivered, 
will  he  presumed  to  receive  it  on  his  master's  account  ;  and  the 
mere  previous  delivery  of  several  parcels  by  the  driver,  for  which 
there  appears  no  contract  for  the  payment  of  a  reward,  will  not 
be  sufficient  to  render  him  a  common  carrier,  so  as  to  make  him 
responsible  for  the  loss  of  a  parcel  intrusted  to  him  upon  the 
same  terms.     A  habit  of  carrying  goods  for  hire,  or  some  con- 


THE  LAW  OF  BAILMENTS.  iGSc 

Now,  the  revjard  or  hire,  which  is  considered  by  Sir 
Edioard   Coke  as  the  reason  of  this  decision,  and  on 


tract  indicating  that  the  servant  acted  as  a  common  carrier,  and 
not  in  his  ostensible  capacity  of  a  servant,  is  necessary  to  make 
him  a  carrier.     Wilhams  v.  Cranston,  2  Stark.  N,  P.  C.  82. 

In  the  conveyance  of  letters  by  the  post  established  by  the  officers  be- 
governraent  for  the  public  convenience,  and  under  the  guidance     "f^'J  ^  ^* 
of  its  own  officers,  regulated  by  various  acts  of  parliament,  the  [  lOStl.  ] 
persons  concerned  in  that  employment  are  not  considered  as 
commoh  carriers,  although  they  are  personally  responsible  for 
their  individual  neglect.     In  an  action,  therefore,  against  the 
Postmaster-General,  for  the  loss  of  exchequer  bills  taken  out  of 
a  letter  delivered  into  the  office,  the  court  decided,  contrary  to 
the  opinion  of  Holt,  C.  J.,  who  delivered  an  elaborate  judgment 
to  the  contrary,  that  the  action  was  not  maintainable.     Lane  v. 
Cotton,  Ij^otd  Raym.  646.  1  Salk.  17.     So,  upon  the  same 
principles,  an  action  was  holden  not  to  lie  against  the  Postmas- 
ter-General, for  a  bank-note  stolen  by  one  of  the  sorters  out  of 
a  letter  delivered   into  the  post-office.     Whitfield   v.  Lord  Le 
Despenser,  2  Cowp.  754.     See  post,  p.  110.  n. 

A  private  person,  who  undertakes  the  carriage  of  goods,  will  Piivate  per* 
be  responsible  for  their  safe  conveyance,  according  te  the  terms 
of  his  agreement,  though  not  as  a  common  carrier.  The  chief 
distinctions  which  exist  between  these  different  persons,  appear 
to  be,  that  the  former  is  not  obliged,  like  a  common  carrier,  to 
undertake  the  carriage  of  goods,  and  is  responsible  only  to  the 
extent  of  his  contract,  and  not  for  that  additional  degree  of  re- 
sponsibility which  is  required  from  a  common  carrier.  See 
Coggs  V.  Bernard,  2  Lord  Raym.  909.  Hutton  v.  Osborne, 
Selwyn's  Nisi  Prius,  382.  n.  (j)  4th  ed.  Robinson  v.  Dunmore, 
2  Bos.  and  Pul.  417-  Thus,  a  person  who  had  undertaken  the 
carriage  of  goods,  and  warranted  that  they  should  go  safe,  was 
hoklen  to  be  liable,  not  as  a  common  carrier,  but  upon  his  spe- 
cial undertaking.  Robinson  v.  Dunmore,  2  Bos.  and  Pul.  417. 
So  an  action  lies  against  the  commander  of  a  ship  of  war,  who 


lOSd.  THE  LAW  OF  BAILMENTS, 

which  the  principal  stress  is  often  laid  in  our  own  times, 
makes  the  carrier  liable,  indeed,  for  the  omission  ofordi- 


takes  the  bullion  of  a  private  merchant  on  board,  for  not  safely 
keeping  and  delivering  it.  Hodgson  v.  Fullarton,  4  Taun.  787. 
An  agreement  will  not  be  implied  on  the  part  of  a  servant  at 
an  inn,  in  order  to  render  him  responsible  for  goods  left  there 
for  delivery  by  a  carrier,  nor  will  the  division  of  the  profits  aris- 
ing from  the  porterage  of  goods,  adopted  as  a  mode  of  remune- 
ration, vary  his  character  ;  and,  in  the  case  of  a  porter  of  an  inn, 
who  had  charge  of  all  parcels  brought  to  the  coach-:»£Bce,  and 
whose  duty  it  was  to  deliver  them  to  the  persons  to  whom  they 
were  directed,  and  for  which  he  received  half  of  the  porterage, 

[  10-je.  J  it  was  holden,  that  he  was  not  personally  liable  for  the  loss  of 
a  parcel  delivered  to  him  by  the  guard  of  a  mail-coach,  which 
stopped  at  the  inn,  but  a  mere  servant  to  the  proprietor,  and,  as 
such,  not  responsible.  Cavenagh  v.  Such,  1  Price,  328.  Vide 
Hyde  v.  the  Trent  and  Mersey  Navigation  Co.  5  T.  R.  397. 
The  degree  of  care  required  of  a  private  person  who  undertcikes 
the  carriage  of  goods  for  a  reward,  is  regulated  by  the  general 
rule  in  the  text,  and  extends  only  to  a  responsibility  for  ordina- 
ry negligence.  But  this  may  be  increased  or  diminished  by 
particular  stipulations.  As  where  the  defendant,  having  under- 
taken the  conveyance  of  some  furniture,  and  warranted  that  it 
should  go  safe,  was  holden  responsible  for  damage  sustained  by 
rain  in  the  course  of  the  journey,  and  that  he  was  not  discharged 
from  his  liability  by  the  owner  sending  a  porter  with  him  for  the 
purpose  of  watching  and  taking  care  of  the  goods.  Robinson 
V.  Dunraore,  2  Bos.  and  Pul.  417. 

6bIigations  to  By  the  general  custom  of  the  realm,  that  is,  by  the  common 
law,  1  Roll.  Abr.  2  (C  )  pi.  1.  2  Bl.  Coram.  6T.  Rushforth  v. 
Hadfield,  6  East,  525.  a  common  carrier  is  bound  to  carry  the 
goods  of  the  subject  for  a  reasonable  reward  ;  and  if  he  refuse 
to  do  so,  having  convenience,  and  being  tendered  satisfaction 
for  the  carriage,  he  will  be  liable  to  an  action,  unless  he  has  rea- 
sonable ground  for  i^is  refusal.     Jackson  v.  Rogers,  2  Show. 


receive. 


THE  LAW  OF  BAILMENTS.  103e. 

vary  care,  but  cannot  extend  to  irresistible  force  ;  and 
tlioiigh  some  other  bailees  have  a  recompence,  as  factors 


129.  1  Show.  104,  105.  Morse  v.  Slue,  1  Vent.  238.  Cull.  N. 
P.  70.  Per  Holroyd,  J.  in  Balson  v.  Donovan,  4  B.  and  A.  32. 
1  Wms's.  Saund.  312.  n.  2. 

If  a  coachman  refuse  to  take  charge  of  goods,  because  his 
coach  is  full,  and  the  goods  are  nevertheless  put  on  the  coach, 
without  the  coachman's  knowledge,  who,  as  soon  as  lie  perceives 
it,  refuses  to  take  charge  of  them,  he  will  not  be  responsible  for 
their  loss.  Lovett  v.  Ilobbs,  2  Show.  12S.  So  a  refusal  would 
be  considered  reasonable,  where  it  at)peared,  that  it  was  a  time 
of  public  commotion,  and  that  the  goods  whicli  die  carrier  was 
desired  to  carry,  were  the  object  of  popular  fury,  and  would 
be  attended  with  a  risk,  against  which  his  precaution  would  be 
inadequate  to  secure  him.  Edwards  v.  Sherratt,  1  East,  604.  [  103l.  ] 
So,  it  would  be  a  reasonable  excuse  for  not  carrying  goods  of 
great  value,  either  if  it  appeared  that  the  carrier  did  not  hold 
himself  out  as  a  person  ready  to  carry  all  sorts  of  goods,  or  that 
he  had  no  convenient  means  of  conveying  such  articles  with  se- 
curity. Per  llolroyd,  J.  in  Batson  V.  Donov/in,  4  Barn,  and 
Aid.  32. 

To  render  a  carrier  responsible  for  goods,  there  must  be  a  Nature  of  De- 
delivery  to  him,  or  his  servant,  or  some  person  acting  on  his  "^^'-^'* 
behalf,  so  as  to  charge  him  with  their  custody,  for  otherwise 
there  can  be  no  inception  of  the  contract.  And,  therefore, 
when  goods  were  left  at  an  inn  yard,  where  the  defendant  and 
several  other  carriers  put  up,  but  without  proving  any  delivery 
to  him  or  his  servant,  this  was  holden  not  to  be  sulhcient  to 
charge  the  defendant  with  their  custody.  Selway  v.  Ilollowa3', 
1  Lord  Raym.  46.  See  BuUer's  Nisi  Prius,  36.  Biidgman's  cd. 
.Tames  v.  Jones,  3  Esp.  N.  P-  C.  2T.  Hawkins  v  Rutt,  Peake's 
N.  P.  C.  186.  So,  where  a  quantity  of  goods  were  left  at  a 
wharf,  piled  up  among  other  goods,  with  a  direction  to  the  con- 
signee, but  no  receipt  was  taken,  nor  were  the  goods  booked, 
<=ir  any  jicrson   belonging  to  the  wharf  fixed  with  a  privity  of 

17 


103f.  THE  LAW  OF  UAILMEISTS. 

[  103f.  ]    and  workmen  for  pay,  yet,  even  in  WoodUefe^s  case,  the 
Chief  Justice  admitted,  that   robbery  was  a  good  plea 


their  being  left  there,  the  carrier  was  holden  not  to  be  charged 
with  such  a  delivery  as  would  render  him  responsible  to  the 
buyer,  in  the  event  of  a  loss.     Buckraan  v.  Levi,  3  Camp.  414. 

A  delivery  to  the  mate  of  a  vessel  bj'  a  wharfinger,  in  the  usu- 
al course  of  trade,  will  discharge  him  of  his  responsibility  ;  for 
by  that  means  the  mate  is  charged  with  the  care  of  the  goods, 
and  will  be  liable,  although  they  may  be  lost  whde  on  the  wharf. 
Cobban  v.  Downe,  5  Esp.  N.  P.  C   41. 

The  delivery  to  a  carrier  may  be  complete,  so  as  to  charge  the 
carrier,  although  not  sufficient  to  charge  the  purchaser,  for  in 
this  latter  case  the  delivery  must  be  such  as  to  give  the  consignee 
a  right  of  action  against  the  carrier,  in  the  event  of  the  loss  of 
the  goods.  Buckman  v.  Levi,  3  Camp.  414.  See  1  Stark.  N. 
P.  C.  17.  If,  therefore,  goods  are  delivered  to  a  carrier,  with- 
out specially  entering  them  as  required  by  a  general  notice, 
which  is  known  to  tho  consignor,  and  the  goods  are  lost,  the 
buyer  is  not  liable  for  their  value.  In  this  case  the  seller  has  an 
implied  authority  ;  and  it  is  his  duty  to  do  whatever  is  neces- 
sary to  secure  the  responsibility  of  the  carrier  for  the  safe  de- 
livery of  the  goods,  and  to  put  them  in  such  a  course  of  convey- 
r  lOS""  1  '^"^^j  '^^  that,  in  case  of  a  loss,  the  buyer  miglit  have  his  indem- 
nity against  the  carrier.  Per  Lord  Ellenborough,  in  Clarke  v. 
riutchins,  14  East,  475.  But  the  necessity  of  complying  with 
the  terms  of  the  notice  may  be  dispensed  with  by  the  purchas- 
er, as  where  goods  have  been  previously  sent  without  being  en- 
tered and  insured  as  above  the  limited  sum,  and  no  objection 
made  upon  that  account.     Cothay  v.  Tute,  3  Camp.  129. 

The  goods  must  also  be  packed  properly,  and  in  fit  condition 
for  their  journey  at  the  time  they  are  delivered  to  the  carrier, 
for,  otherwise,  if  any  loss  arise  on  that  account  durmg  their  con- 
veyance, the  carrier  will  not  be  responsible.  See  Beck  v. 
Evans,  16  East,  245  Stuart  v.  Crawley,  2  Stark.  324.  Where, 
however,  there  was  a  complete  delivery,  acknowledged  by  a  re- 


THE  LAW  OF  BAILMENTS.  jOSo^. 

lor  a  factor,  though  it  was  a  bad  one  for  a  carrier :  the 
true  ground  of  that  resohition  is  the  public  employment 


ceipt,  of  a  greyhound,  which  afterwards  escaped,  and  was  lost, 

the  carrier  was  not  allowed  to  set  up  as  a  defence,  that  the  dog 

was  not  properly  secured  when  delivered  to  him,  for,  after  the 

delivery,  he  hecame  responsible  for  the  animal,  and  was  bound 

to  lock  him  up,  or  take  other  moans  to  secure  him.     Stuart  v. 

Crawley,  2  Stark.  N    P.  C.  323. 

[Where  a  common  carrier  pays  damages  for  the  loss  of  goods 

by  negligence  or  unskilful  management,  it  is  tantamount  to  a 

safe  delivery,   and  he  is  entitled  to  freight.     Hammond  v.  Mc- 

Clures,  1  Bay.  Rep.  101.] 

Cut  a  person  delivering  goods  to  a  carrier  is  not  bound,  by  „  .         <•  ., 
'  °  °  '     -^   Nature  of  the 

the  common  law,  to  specify  their  equality  or  value,  for  it  is  the  contract, 
duty  of  the  carrier  to  make  inquiry,  if  he  desires  to  secure  him- 
self against  particular  hazard,  or  to  receive  a  larger  premium. 
Titchburne  v.  White,  1  Str.  14.').  Per  Holroyd,  J.  in  Batspn  v. 
Donovan,  4  B.  and  A.  31.  An  acceptance  of  goods  generally 
will,  therefore,  render  him  responsible,  whatever  may  be  their 
value,  and  notwithstanding  he  is  ignorant  of  that  circumstance. 
But  if  a  parcel  is  received  upon  condition  that  there  is  no  money 
in  it,  the  carrier  will  not  be  liable,  if  the  parcel  is  lost,  and  did 
in  truth  contain  money.  Titchburne  v.  White,  1  Str.  145.  So, 
where  two  bags,  sealed  up,  were  delivered  to  the  carrier,  and 
said  to  contain  200/ ;  for  which  sum  the  carrier  gave  a  receipt, 
when  in  fact  it  contained  400/.,  Holt,  C.  J.  decided,  that  the  car- 
rier was  responsible  only  for  200/.,  because  there  was  a  particu- 
lar undertaking  for  the  carriage  of  that  sum ;  and  that  the  re- 
ward, which  was  the  measure  of  his  responsibility,  did  not  ex- 
tend further.  Tyly  v.  Morrice,  Garth.  485.  See  4  Burr. 
2301.  In  the  same  manner,  where  the  plaintiff  delivered  to  the 
defendant,  a  carrier,  a  box,  telling  him  only,  "  that  there  was  a  [  103p.  ] 
hook  and  tobacco  in  the  box,"  whereas,  in  fact,  it  contained 
100/.,  Roll,  C.  J.  was  of  opinion,  that  as  the  carrier  had  not 
made  a  special  acceptance,  he  was  answerable  ;   hut,  with  res- 


103h.  THE  LAW  OF  BAILMENTS. 

exercised  by  the  carrier,  and  the  danger  of  his  combining 
with  robbers  to  tlie  inlinite  injury  of  commerce  and  ex- 
treme inconvenience  of  society. (c) 

(z)  Ld.Raytn.917.     12  Mod   487. 


pect  to  the  intended  cheat  upon  the  carrier,  he  told  the  jury 
tliiey  might  consider  him  in  damages,  but  they,  notwithstanding, 
gave  a  verdict  for  97^.  againstthe  carrier.  "  Quod,''  observes 
the  reporter,  "  durum  videbatur  circumstantibus."  Kenrig  v. 
Eggleston,  Aleyn,  !J3.  So,  where  one  brought  a  box  to  a  carri- 
er, in  which  ther'^  was  a  hirgc  sum  of  money,  who  demanded  of 
the  owner  what  was  in  it ;  he  answered,  it  was  filled  with  silks 
and  such  like  goods  of  mean  value  ;  upon  which  the  carrier  took 
it,  and  was  robbed  ;  and  resolved  that  he  was  liable.  But,  if 
the  carrier  had  told  the  owner,  that  it  was  a  dangerous  time,  and, 
if  (here  was  money  in  it  he  durst  not  take  charge  of  it,  and  the 
owner  had  answered  as  before,  this  mtitter  would  have  excused 
the  carrier.  Morse  v.  Slue,  1  Vent.  238,  And  Lord  Mansfield, 
(y.  J.  in  Gibbon  v.  Paynton,  4  Burr.  2301.  commenting  on  the 
two  preceding  cases,  observed,  that  in  the  first  case  he  should 
have  agreed  in  opinion,  cum  circitmstantihtts,  and  that,  in  the 
second,  he  should  have  thougiit  the  carrier  excused,  although 
he  had  not  expressly  proposed  a  caution  agtinst  being  answera- 
ble for  tile  money,  for  it  was  artfully  concealed  from  him,  that 
there  was  any  mone\'  in  the  box.  The  delivery,  indeed,  must 
be  free  from  artifice  or  misrepresentation,  made  with  a  view  to 
deceive  the  carrier;  for  honesty  and  good  faith  are  as  requisite 
in  thi.-;,  as  in  every  other  contract,  and,  consequently,  any  con- 
ce;ilment  or  fraudidenl  device  in  the  delivery  of  goods,  will  dis- 
charge the  carrier.  See  Gibbon  v.  Paynton,  4  Burr,  2298. 
Batson  v.  Donovan,  4  B.  and  A.  2l.  And  where  the  carrier 
has  given  notice,  that  he  will  not  be  liable  for  parcels  of  value, 
unless  they  are  entered,  and  a  proportionate  premium  paid,  this 
will  be  equivalent  to  a  special  acceptance,  and  render  it  incum- 
bent upon  the  owner  to  disclose  the  value,  in  order  to  make  the 
carrier  responsible.     The  effect  of  the  notice  will  be,  when  no 


THE  LAW  OF  BAILMENTS.  1031i. 

The  modern  rule  concerning  a  common  carrier  is  that  Exceptions 

from  the  fifcnC" 

"  nothing  will  excuse  him,  except   the  act  o/God,  or  oi  ,ai  rule. 


special  entry  is  made,  to  entitle  the  carrier  to  consider  the  par^ 
eel  as  of  an  ordinary  nature,  and  not  falling  within  that  descrip- 
tion of  goods  for  which  he  refuses  to  he  liable  without  a  compli- 
ance with  the  terms  of  the  notice  ;  and  in  such  cases,  the  hold-  [  104  ] 
ing  out,  as  an  ordinary  risk,  what  is,  in  truth,  an  extraordinary 
one,  will  be  considered  as  a  legal  fraud.  And  the  legal  maxim 
applies,  "  Ex  dolo  malo  non  oritur  actio."  Per  Bailey,  J.  in 
Batsoa  v.  Donovan,  4  Barn,  and  Aid.  37-  In  the  before  men- 
tioned case  of  Gibbon  v.  Paynton,  the  carrier,  who  was  protect- 
ed by  a  general  notice,  received  a  quantity  of  gold,  packed  in  an 
old  nail-bag,  which  was  stuffed  with  hay,  to  give  it  a  mean  ap- 
pearance. The  court  considered  this  mode  of  packing  so  valu- 
able an  article  as  a  fraud,  and,  on  that  ground,  gave  judgment  for 
the  defendant.  See  Buller's  IS'isi  Prius,  Jl  a.  Bridgman's  ed. 
Batson  V.  Donovan,  4  Barn,  and  Aid.  31.  So,  in  the  last  men- 
tioned caseof  Batson  V.  Donovan,  where  no  concealment  or  ac- 
tual fraud  was  practised  upon  the  carrier:  he  had  however  given 
notice  within  the  plaintilT's  knowledge,  that  he  would  not  be  ac- 
countable for  bills,  bank-notes,  &c.  unless  notice  was  given,  and 
an  additional  premium  paid  ;  but  the  plaintiff,  nevertheless,  de- 
livered to  him  a  banker's  parcel,  containing  articles  of  that  de- 
scription to  a  large  amount,  without  disclosing  the  nature  or  value 
of  its  contents,  and  the  parcel  was  subsequently  lost ;  the  court 
held,  that  the  plaintiiChaving  knowledge  of  the  notice, v/as  bcund 
to  have  informed  the  carrier  of  the  value,  in  order  to  render 
liim  responsible  iind  Mr.  Justice  Bailey  observed,  that  "the 
holding  out  as  an  ordinary  risk,  what  is  really  an  extraordinary 
one,  is  a  legal  fraud."  4  Barn,  and  Aid.  3".  So,  where  there 
is'  a  general  notice  not  to  be  responsible  for  articles  of  a  particu- 
lar description,  and  goods  of  that  nature  are  delivered  to  a  car- 
rier, whether  he  is  to  receive  a  rewanl  or  not,  the  nature  and 
value  of  the  parcel  should  be  communicated,  to  enable  him  to 
adopt  proper  precautions  for  their  safety.  Bignold  v.  Water- 
house,  1  Maule  and  Selw.  2Gl. 


104  THE  LAW  OF  BAILMENTS. 

V  the  king's  enemies'^a)    but  a  momentary  attention  to 
the  principles  must  convince  us,  tliat  this  exception  is 

(a)  Law  of  Nisi  Prius,  70,  71. 


But  directing  a  banker's  parcel,  containing  bank-notes  and 
bills  to  a  large  amount,  to  their  clerk,  in  order  to  conceal  the 
nature  of  its  contents,  and  without  giving  the  carrier  any  notice 
of  its  value,  will  not  be  deemed  fraudulent,  so  as  to  deprive  the 
owner  of  his  remedy  for  a  loss,  in  a  case  where  the  carrier  was 
r  iQif,  I  deprived  of  the  benefit  of  his  notice  by  misfeasance.  Sleat  v. 
Fagg.  5  B.  and  A.  343. 

In  the  case  of  a  partnership,  the  acts  of  each  partner  in  the 
name  of  the  firm,  and  for  partnership  purposes,  are  binding  up- 
on all  the  partners;  but  the  transaction  must  be  hona fide,  and 
free  from  fraud,  and  not  transacting  by  oue  partner,  for  his  indi- 
vidual benefit,  behind  the  backs  of  his  co-partners.  For,  where 
an  agreement  was  entered  into  with  a  banker  by  one  partner, 
for  his  sole  benefit,  without  the  knowledge  of  his  co-partners,  to 
take  the  banker's  private  parcels  free  of  expense,  and,  in  pursu- 
ance of  this  arrangement,  banking  parcels  had  been  sent  for  two 
years  ;  in  an  action  for  the  value  of  a  parcel  containing  bills  and 
notes  to  a  considerable  value,  which  was  received  in  the  usual 
way,  and  subsequently  lost,  the  court  held,  that  the  other  part- 
ners were  not  liable.  Bignold  v.  AVaterhouse,  1  M.  and  S.  255. 
Obligation  to        The  responsibility  required  of  a  carrier  with  reference  to  the 

carry  safelv.  ,,  ,.,,.,    i       •  i      •  i      i 

care  oi  goods  with  which  he  is  entrusted  with  the  carnage,  rests 
upon  two  foundations  ;  the  particular  nature  of  his  contract,  and 
the  obligations  superadded  by  law  upon  |jrinciples  of  public  po- 
licy. A  carrier,  like  every  other  bailee,  may  stipulate  to  sus- 
tain any  degree  of  risk,  or  perforin  services  however  burthen- 
some,  and  he  will  be  bound  to  perform,  to  the  extent  of  his  con- 
tract, the  engagements  into  which  he  has  entered.  But  where 
no  specific  agreement  is  entered  into,  the  acceptance  of  a  re- 
ward would  render  him  responsible  only  for  ordinary  negligence. 
See  ante,  p.  I03f.  A$  this  degree  of  responsibility,  however", 
would  not  be  sufficient  to  protect  the  public  interests  from  the 


THE  LAW  OF  BAILMENTS.  104a. 

in  truth  part  of  the  rule  itself,  and  that  the  responsihility 
for  a  loss  by  robbers  is  only  an  exception  to  it ;    a   car- 


fraud  of  a  class  of  persons  who  are  not  entitled  to  extraordina- 
ry confidencej  and  are  exposed  to  great  temptations  to  be  fraudu- 
lent with  little  chance  of  discovery,    the   common  law,  to  pre- 
vent collusion  between  carriers  and  robbers,  considerably  enlarg- 
ed their  liability,  even  in  some  cases  beyond  what  those  princi- 
ples would  appear  to  warrant.    See  1  T.  R.  32.     By  the  custom 
of  the  realm  a  carrier  is  responsible  for  events  which  are  inde^ 
pendent  of  his  contract,  and  is  liable  for  all  losses,  whether  aris- 
ing from  accident,  robbery,  irresistible  force,  or  any  other  means 
whatever,  except  they   arise  from    the   act  of  God,   or  of  the 
King's  enemies.    "  By  the  nature  of  his  contract,  as  observed  by  [  104b.   ] 
"  Lord  Mansfield,  C.  J.  in  Forward  v.  Pittard,    1  T.  R.  33.   a 
"  carrier  is  liable  for  all  due  care  and  diligence  ;  and  for  any  ne- 
"gligence  he  is  suable  on  his  contract.     But  there   is  a  further 
"degree  of  responsibility  by  the  custom  of  the  realm,  that  is,  by 
"  the  common  law  ;    a  carrier  is  in  the  nature  of  an  insurer.     It 
"  is  laid  down  that  he  is  liable  for  every  accident,  except  by  the 
'•'  act  of  God,  or  the  King's  enemies.     Now,  what  is  the  act  of 
"  God  ?  I  consider  it  to  mean  something  in  opposition  to  the  act 
"  of  man  :  for  every  thing  is  the  act  of  God  that  happens  by  his 
"permission;  everything,  by  his  knowledge.     But  to  prevent 
'•  litigation,  collusion,  and  the  necessity  of  going  into  circumstan- 
"  ces  impossible  to  be  unravelled,  the  law  presumes  against  the 
"'  carrier,  unless  he  shows  it  Avas  done  by  the  King's  enemies,  or 
"by  such  act  as  could  not  happen  by  the  intervention  of  man  ; 
"  as  storms,  lightning,  and  tempests.     If  an   armed  force  come 
"  to  rob  the  carrier  of  the  goods,  he  is  liable  ;  and  a  reason  is 
"  given  in  the  books,  which  is  a  bad  one,  viz.  that  he  ought  to 
"  have  sufficient  force  to  repel  it ;  but  that  would  be  impossible 
"  in  some  cases,  as  for  instance  in  the  riots  in  the   year  1780. 
"  The  true  reason  is,  for  fear  it  may  give  room  for  collusion,  that 
"  the  master  may  contrive  to  be  robbed  on  purpose,  and  share 
"  the  spoil."     See   Proprietors  of  Trent  Navigation  v.  Wood, 
3  Esp.  N.  P.  r.  231.     Abbott  on  Shipping,  231,  4th  ed.     Dale 


1041).  THE  LAW  OF  BAILMENTS. 

rier  is  rcgidarJij  answerable  for  neglect,  but  not,  regularly, 
for  damage   occasioned  by  the  attacks  of  rujjians,  any 


V,  Hall,  1  Wils.  281,  supra,  p.  104a.  But  it  will  be  no  excuse 
for  a  carrier  that  the  loss  arose  from  the  act  of  God,  or  of  the 
King's  enemies,  if  it  were  occasioned  by  his  negligence.  As 
where  the  plaintiff  put  goods  on  board  the  defendant's  hoy,  who 
was  a  common  carrier  :  coming  through  a  bridge,  by  a  sudden 
gust  of  wind  the  hoy  sunk,  and  the  goods  wer,e  spoiled.  Pratt, 
C.  J.  held  the  defendant  not  answerable,  the  damage  being  oc- 
casioned by  the  act  of  God  ;  for,  though  the  defendant  ought 
not  to  have  ventured  to  slioot  the  bridge,  if  the  general  bent  of 
the  weather  had  been  tempestuous,  yet  this  being  only  a  sudden 
gust  of  wind,  varied  the  case.  The  plaintiff's  counsel  having 
L  *  J  offered  some  evidence,  that  if  the  hoy  had  been  in  better  condi- 

tion it  would  not  have  sunk.  The  Chief  Justice  said,  that  a  car- 
rier was  not  obliged  to  have  a  new  carriage  for  every  journey  ; 
it  was  sufficient,  if  he  provided  one  which,  without  any  extraor- 
dinary accident  such  as  this  was,  would  probably  perform  the 
journey.     Amies  v.  Stcv'ens,  1  Str.  128. 

[Where  a  vessel  was  beating  up  the  Hudson,  against  a  light 
and  variable  wind,  and  being  near  shore,  and  while  changing 
lier  tack  the  wind  suddenly  failed,  in  consequence  of  which  she 
ran  aground  and  sunk.  It  was  held  that  this  sudden  failure  of 
the  wind  was  the  act  of  God,  and  excused  the  master,  there  be- 
ing no  negligence  on  his  part.  Colt  and  Colt  v.  McMecken,  G 
Johns.  Rep.  l60. 

If  a  loss  happens,  the  onus  probandi  lies  on  the  carrier  to 
exempt  him  from  the  liability  :  and  it  is  not  enough  for  him  to 
prove,  where  the  goods  arc  carried  by  water,  that  the  navigation 
is  attended  with  so  much  danger  that  a  loss  may  happen  not- 
withstanding the  utmost  endeavours  of  the  watermen  and  crew 
to  prevent  it ;  that  the  person  conducting  the  boat  possesses 
competent  skill  and  due  diligence,  and  provided  hands  of  suffi- 
cient strength  and  experience  to  assist  him.  Murphy,  Brown  & 
Co,  v.  Slaton,  3  Muuf.  Rep.  239.  and  see  Bell  v.  Reed,  4  Bin. 
Rep.  127.  6  Johns.  Rep.  l60. 


THE  LAW  OF  BAILMENTS.  104c. 

more  than  for  hostile  violence  or  unavoidable  misfor- 
tune ;  but  the  great  maxims  of  policy  and  good  govern- 


But  where  the  master  of  a  skipper,-  who  had  undertaken  to 
'"carry  a  parcel  of  cotton,  his  own  vessel  being  full,  with  the  con- 
currence of  plaintiff's  overseer  has  it  put  on  board  of  another 
vessel,  but  gave  a  receipt  himself;  that  vessel  became  stranded, 
and  the  cotton  damaged,  but  the  vessel  being  proven  good  and 
sufficiently  manned,  the  carrier  who  undertook  was  held  not  li- 
able for  the  loss.  Barnwell  v.  Hussy,  1  Cons.  Rep.  S.  C.  114. 

Where  goods  are  damaged  on  board  of  a  vessel  in  the  voyage, 
and  alleged  to  be  through  the  default  of  the  master,  it  is  not 
absolutely  necessary  that  the  damaged  goods  should  be  sold  in 
order  to  give  a  right  of  action  ;  and  far  less,  that  both  the  dam- 
aged and  the  sound  should  be  sold.  The  plaintiff,  if  he  have  a 
right  to  recover  at  all,  may  prove  his  damages  in  any  other  com- 
petent manner.  Shackleford  v.  Patrick,  1  Cons.  Rep.  S.  C.  311. 
Whether  there  be  negligence  or  not  is  a  question  of  fact  for  the 
jury  to  decide.  Elliot  and  Stewart  v.  Russell  and  Lewis,  fO 
Johns   Rep.  I.   Colt  and  Coltv  McMecken,  6  Johns.  Rep.  160. 

Where  the  owners  of  a  vessel  undertook  to  carry  goods  for 
hire,  from  one  port  to  another,  and  during  the  passage  the  river 
became  obstructed  with  ice,  it  was  held  that  they  were  liable  as 
common  carriers  for  the  damage  sustained.  Richards  v.  Gil- 
bert, 5  Day  Rep.  415. 

If  the  vessel  of  a  common  carrier  strike  on  a  rock  not  gene- 
rally known,  and  the  master  did  not  actually  know  it,  and  if  he 
conducted  himself  properly,  and  no  fault  was  imputable  to  him, 
he  would  not  be  liable  :  Secus,  if  the  loss  be  imputable  to  neg- 
ligence, as  if  the  master  be  ignorant  of  the  navigation  of  the 
river,  and  have  no  pilot  on  board.  Williams  v.  Grant,  1  Conn. 
Rep.  487 

A  carrier's  vessel  must  be  sea-worthy,  or  he  must  answer, 
although  the  loss  does  not  proceed  from  sea-worthiness.  Bell 
v.  Keed,  4  Bin.  Rep.  127-] 

If  goods  are  delivered  to  a  carrier  for  the  purpose  of 
carriage,  and  he  is  robbed  of  them,  he  will  be  answerable  for 

IS 


104c.  THE  LAW  OF   BAILMENTS. 

ment  make  it  necessary  to'  except  from  this  rule  the  case 
of  robbery,  lest  confederacies  should  be  formed  betweeu 

their  value,  because,  having  his  hire,  there  is  an  implied  under- 
taking for  their  safe  dehvery.  Woodleife  v.  Curteis,  1  Roll. 
Abr.  2.  (C)  pi.  4,  1  Inst.  89  a.  ;  but  see  ^nte,  103f.  for  the 
true  ground  of  this  responsibility. 

[Where  a  master  of  a  vessel  employed  in  the  transportation 
of  goods  between  New-York  and  Albany,  carried  some  flour 
to  New- York,"  for  the  ordinary  freight,  ;uid  having  sold  it  in 
New-York  for  cash,  was  robbed  of  the  money  ;  it  was  held  that 
the  owners  of  the  vessel  were  liable  for  the  amount,  though  no 
compensation  beyond  the  freight  was  allowed  for  the  sale  of 
the  goods  and  bringing  back  the  money  ;  such  being  the  duty 
of  the  master  in  the  usual  course  of  the  employment,  where 
no  special   instructions  were  given.     Kemp  v.   Coughtry,  11 

Johns.  Rep.  107.] 

In  the  same  manner,  he  is  responsible  for  an  injury  re- 
sulting from  irresistible  force ;  for  though  the  force  be  ne- 
ver so  great,  as  if  an  irresistible  number  of  persons  should 
rob  him,  he  is  nevertheless  chargeable.  Per  Holt,  C.  J.  in 
Coggs  V.  Bernard,  I  Lord  Raym.  919.  So,  the  carrier  is 
responsible  for  inevitable  accident,  as  in  the  above  case  of 
Forward  v.  Pittard,  1  T.  R.  25.  where  the  goods  were  des- 
troyed by  an  accidental  fire,  communicating  to  the  booth  in 
which  the  goods  were  deposited  for  a  temporary  purpose,  in 
the  course  of  the  journey  ;  and  where  it  was  expressly  found 
that  they  were  consumed  without  any  negligence  in  the  carrier, 
and  that  the  fire  was  not  occasioned  by  lightning.  See  Hyde 
V.  the  Navigation  Company  from  the  Trent  to  the  Mersey,  5  T. 
R.  389.  So,  where  the  Proprietors  of  the  Trent  Navigation 
Company  undertook  to  carry  goods  froin  Hull  to  Gains- 
borough, and  the  vessel  on  board  of  which  the  goods  were,  sunk 
in  the  river  Humber,  by  driving  against  an  anchor  in  the  river, 
and  the  goods  were  in  consequence  considerably  damaged,  the 
carrier  was  holden  responsible  for  the  loss,  notwithstanding  it 
was  objected,  that  the  accident  was  occasioned  by  the  negli- 
gence of  persons  on  board  a  barge  in  the  river,  in  not  liaving 


THE  LAW  OF  BAILMENTS.  104c. 

carriers  and  desperate  villains  with  little  or  no  chance 
of  detection. 


their  buoy  out,  to  mark  the  place  where  the   anchor  lay.     The 

court  observed,  that   there   was  a  degree  of  negligence   in  the 

carrier,  for  his  not  seeing  the  buoy  ought  to  have  put  him  upon 

iaquiring  more   minutely  about  the  anchor  ;    and  even  if  there 

had  not  been  any  actual  negligence  on  the  part  of  the  carrier, 

yet  that  negligence,  in  point  of  law,  was  sufficient  without  any    j"  104d.  1 

other  cause.     Proprietors  of  the   Trent   Navigation  v.   Wood, 

3  Esp   N.  P.  C.  127. 

From  this  responsibility  the  adoption  of  additional  means  to 
insure  safety  will  not  exonerate  the  carrier,  where  the  goods 
are  in  his  custody  in  that  character.  If,  therefore,  goods  of 
great  value  are  delivered  to  a  common  hoyman,  and  the  owner 
afterwards  delivers  them  to  another  person  in  the  boat  to  keep 
safely,  but  does  not  discharge  the  hoyman,  and  they  are  after- 
wards lost  through  negligence,  an  action  lies  against  the  hoy- 
man. Roll.  Abr.  2.  (C)  pi.  3.  So,  if  a  man  travel  ia  a  stage 
coach  and  take  his  portmanteau  with  him  ;  though  he  has  his 
eye  on  the  portmanteau,  yet  the  carrier  is  not  absolved  from  his 
responsibility,  but  will  be  liable  if  the  portmanteau  be  lost.  Per 
Chambre,  J.  in  Robinson  v.  Dunmore,  2  Bos.  and  Pul.  419. 

The  injury,  however,  must  happen  whilst  the  goods  are  in 
the  carrier's  custody  as  a  common  carrier,  for  where  a  carrier 
by  water  had  reached  the  place  of  his  destination,  and  the 
goods  were  deposited  in  a  warehouse  belonging  to  him,  but 
without  any  distinct  charge  being  made  on  that  account,  for  the 
convenience  of  the  owner,  and  until  they  could  be  forwarded 
by  another  conveyance  ;  the  carriet;*'s_duty,  as  such,  was  holden 
to  have  terminated,  and  that  he  was  not  liable  for  the  loss  of 
the  goods,  which  arose  from  their  being  destroyed  by  an  acciden- 
tal fire  while  they  were  in  the  carrier's  warehouse.  Garside  v. 
The  Proprietors  of  the  Trent  and  Mersey  Navigation,  4  T. 
R.  581.  See  ante,  96a.  n,  (7).  So,  in  an  action  by  the  East 
India  Company  against  a  lighterman  on  an  undertaking  to  carry 
goods  for  hire,  for  not  safely  conveying  them  from  a  ship  in  the 


104d.  THE  LAW  OF  BAILMENTS. 

Although  the   act   of  Gody   which   the  ancients  too 
called  @'-^  €/av  and  vin  divinam,  be  an  expression,  which 


river  Thames  to  the  Company's  warehouses,  by  which  they 
were  lost.  It  appeared  that  upon  the  unshipping  of  the  goods, 
the  Company  had,  as  was  their  custom,  put  an  officer  called  a 
guardian  on  board  the  lighter,  who,  as  soon  as  the  lading  was 
complete,  put  the  Company's  locks  on  the  hatches,  and  accom- 
panied the  goods  to  see  them  safely  delivered.  Raymond, 
C.  J.  was  of  opinion,  that  this  differed  from  the  commoa 
case,  this  not  being  any  trust  in  the  defendant,  and  the  goods 
r  104e.  1  were  not  to  be  considered  as  ever  having  been  in  his  possession, 
but  in  the  possession  of  the  Company's  servant  who  had  hired 
the  lighter  to  use  himself;  bethought,  therefore,  that  the  action 
was  not  maintainable,  and  the  plaintiffs  were  non-suited.  East 
India  Company  v.  Pullen,  Str.  690.  In  commenting  upon  this 
case,  in  Robinson  v.  Dunmore,  2  Bos.  and  Pul.  419.  Chambre, 
J.  observed,  that  this  decision  proceeded  on  the  usage  of  the 
East  India  Company,  who  never  intrust  the  lightermen  with 
their  goods,  but  give  the  whole  charge  of  the  property  to  the 
officer  called  the  guardian. 

But  since  it  is  the  duty  of  a  carrier  to  deliver  goods  to  the 
houses  of  persons  to  whom  they  are  directed,  where  it  is  the 
usage  of  his  trade  to  do  so,  they  will  be  considered  in  his  cus- 
tody as  a  common  carrier,  and  he  will,  therefore,  be  liable  as 
such,  until  they  are  so  delivered.  The  defendants,  who  were 
common  carriers  from  Gainsborough  to  Manchester,  received 
a  quantity  of  goods  to  be  conveyed  from  the  former  place 
alon"-  their  Navigation  and  the  Duke  of  Bridgewater's  canal  to 
Manchester,  where  they  were  lodged  in  the  Duke  of  Bridge- 
water's  warehouse,  and  there  consumed  by  an  accidental  fire 
the  same  night.  Distinct  charges  were  made  for  the  carriage  of 
the  goods  along  different  parts  of  the  navigation  ;  for  ware- 
house room  for  the  Duke  of  Bridgewater,  which  they  received 
as  his  agent,  and  without  any  share  of  the  profit ;  and  also  for 
cartage  from  the  Duke  of  Bridgewater's  warehouse  to  the 
plaintiff's  warehouse  at  Manchester.     The  defendants  had  for- 


THE  LAW  OF  BAILMENTS.  104e: 

long  habit  has  rendered  familiar  to  us,  yet  perhaps,  on 
that  very  account,  it  might  be  more  proper,  as  well  as 

merly  delivered  the  goods  in  their  own    cart,  but  had   latterly 

given  up  that  business,  and  the  profits  to  be  derived  from  it  to 

their  book-keeper,  which  was  known   to  the   plaintifts.     The 

goods   hiving  been    lost,  the   defendants  were   holden   liable, 

since  they  had  received  the    goods  in  the   capacity  of  carriers, 

and   as   their  engagement  was  to  carry  and  deliver  them,  the 

goods   remained   in  their    custody,  as  carriers,  the  whole  time, 

which  wa^  not  affected  by  the  arrangement  made  by  them  with 

their    bookkeeper.     The  charge   for   wharfage  and  cartage  in 

the  defendant's  bill,  which  they  compelled  the  plaintiffs  to  pay 

before  they  would  engage  to  deliver  the  goods,  were  considered     p  ,^.»  ^ 

as  decisive  to   show  that  in  this   case  the  liability  of  the  defen-  '  "* 

dant  continued  until  the  goods  were  delivered.     Hyde  v.  The 

Navigation  Company  from  the  Trent  to  the  Mersey,  5  T.  R.  389. 

[Where  goods  were  put  on  board  the  vessel  of  the  defendant 
to  be  carried  to  Albany,  and  on  arriving  there,  were  by  the 
defendant's  direction  put  on  the  wharf,  it  was  held  that  this 
was  not  a  delivery  to  the  consignee,  although  the  goods  were 
taken  away  (without  the  direction  of  the  consignee)  by  a  carter 
usually  employed  to  transport  his  goods,  and  the  greater  part 
actually  received  by  the  consignee  ;  and  the  defendant  was 
held  hable  in  trover  for  the  goods  not  actually  dolivered.  Os- 
trander  v.  Brown,  15  Johns.  Rep.  39.] 

The  unlimited  responsibility  imposed  upon  a  carrier,  except  General  nott- 
in  the  two  instances  before  mentioned,  might  in  many  cases  ces, 
prove  oppressive,  unless  he  were  allowed  to  protect  himself  by 
particular  stipulations.  An  indulgence  was,  therefore,  former- 
ly allowed  of  qualifying  this  general  liability  by  reasonable 
limitations,  not  inconsistent  with  his  common  law  obligation, 
and  a  carrier  might,  where  he  had  just  grounds  for  doing  so 
decline  altogether  to  take  charge  of  goods ;  or  if  he  consented 
to  accept  them,  he  might  protect  himself  by  the  special  terms 
upon  which  he  agreed  to  receive  them.  Morse  v.  Slue,  1  Vent. 
238.     Bodenham  v.  Bennett.  4  Price,  34.     Terms  of  this  de- 


104f.  THE  LAW  OF  BAILMENTS. 

more  decent,  to  substitute  in  its  place  inevitable  accident ; 
religion  and   reason,   which  can  never  be  at   variance 


scription  are  of  ancient  date.  See  3  Taun.  271. ;  and  the  receipt 
of  goods  upon  such  roiifiiiions  was  considered  as  a  special  ac- 
ceptance, find  was  usually  made  in  eaih  pnrticular  case.  But  in 
recent  limits  a  ra 'de  has  arisen  of  '^fleeting  ihe  same  object  by 
means  of  a  general  notice,  intimating  to  the  public  the  terms  up- 
on which  the  carrier  consents  to  take  charge  of  goods  ;  and  if 
the  notice  is  brought  home  to  the  knowledge  of  the  employer,  it 
will  be  considered  as  equivalent  to  a  special  acceptunce.  The 
importanre  of  these  notices,  and  the  numerous  .questions  ta 
which  they  give  rise,  will  perhaps  excuse  an  examination  into 
their  nature  and  the  protection  they  afford. 

The  qualification  engrafted  by  a  speciil  acceptance, upon  the 
carrier's  obligation  to  carry  goods,  must  in  all  cases  be  of  a 
reasonable  nature,  and  not  calculated  to  destroy  the  duty  impo- 
sed by  the  common  law ;  and  the  same  principle  applies  to  the 
ciise  of  a  notice.  By  a  general  notice,  a  carrier  generally  re- 
fuses to  be  liable  for  articles  above  a  small  sum,  unless  entered, 
and  an  additional  premium  paid  in  proportion  to  the  value  of 
the  article  ;  and  in  this  respect  there  is  nothing  unreasonable, 
for  the  carrier  is  not  only  to  be  paid  for  his  labour,  but  also  for 
the  risk  he  incurs.  His  charge,  however,  must  in  all  cases  be 
reasonable,  for  he  is  bound  to  carry  goods  which  are  brought  to 
him,  and  cannot   defeat  this  obligation  by  making  an  excessive 

r  -inj      -I    demand.     Harris  v.  Pnckwood,  3    Taun.   272.     Batson  v.  Do- 
1  lU4g.  J 

novan,  4  Barn,  and  Aid.  39.     Hyde  v.   the  Proprietors  of  the 

Trent  and  Mersey  Navigation,  1  Esp.  N.  P.  C.  56.  But  he 
may  not  only  limit  his  responsibility  in  this  respect,  but  may  iu 
some  cases  exclude  it  altogether,  as  by  refus-ing  all  responsibility 
from  accident  arising  by  fire.  Maving.  v.  Todd,  1  Stark.  N.  P. 
C.  72.  and  i;i  general  he  will  not  be  liable  for  losses  arising 
from  accident,  or  for  theft,  or  robbery,  when  no  collusion  can 
be  established  on  the  part  of  the  carrier;  or  for  any  want  of 
care,  unless  amounting  to  gross  negligence,  or  a  tortious  mis- 
feasance of  the  property. 


THE  LAW  OF  BAILMENTS.  104g. 

without  certain  injury  to  one  of  them,  assure  us,  that 
*'  not  a  "rust  of  wind  blows,   nor  a  flash  of  Hglitning 


By  these  means,  the  wholesome  provisions  of  the  common  law 
have  not  only  been  defeated,  but  the  effect  of  these  notices  has 
been  to  render  a  carrier  responsible  for  a  less  degree  of  care 
than  that  which  is  exacted  from  a  pawnee,  or  any  other  bailee 
who  has  a  reward.  A.  warehouseman,  depositary  of  goods  for 
hire,  or  other  bailee  of  a  similar  description,  are  responsible  for 
the  want  of  ordinary  care  ;  but  a  common  carrier,  ahhough  he 
receives  a  reward,  is  not  liable  for  ordinary  negligence  ;  for  al- 
though it  is  said  a  general  notice  does  not  exempt  him  from  the 
exercise  of  due  and  ordinary  care,  yet  the  question  left  to  the 
jury  in  such  cases  is,  whether  he  has  been  guilty  of  gross  negli- 
gence. See  Batson  v.  Donovan,  4  Barn,  and  Aid.  21.  and  the 
cases  infra. 

For  these  reasons,  the  legality  of  these  notices  and  the  policy  Theirlegality. 
of  adopting  them,  have  been  frequently  questioned,  and  their 
introduction  has  been  lamented  by  many  eminent  and  learned 
persons.  See  Down  v.  Fromont,  4  Camp.  41.  Smith  v.  Home, 
8  Taun.  14G.  ;  but  they  are  now  established  to  be  legal,  and  are 
daily  recaived  and  acted  upon  in  courts  of  justice.  In  the  case 
of  Nicholson  v.  Willan,  5  East,  507.  an  objection  to  their  vali- 
dity came  formally  before  the  court,  upon  the  gronnd  of  their 
inconsistency  with  the  policy  of  the  common  law,  and  that  it 
was  the  duty  of  carriers,  if  the  reward  was  not  adequate  to  the 
i-isk,  to  make  a  special  acceptance  of  the  goods  in  each  case,  at 
a  rate  proportioned  to  their  value.  But  it  was  observed  by  Lord 
Ellenborougli,  C.  J.,  delivering  the  judgment  of  the  court, 
"  that  considering  the  length  of  time  during  which,  and  the  ex-  [  104h»  J 
"  tent  and  universality  in  which  the  practice  of  making  such 
"  special  acceptances  of  goods  for  carriage,  by  land  and  water,. 
"  has  now  prevailed  in  this  kingdom,  under  the  observation,  and 
"  with  the  allowance  of  courts  of  justice,  and  with  the  sanction 
"  also  and  countenance  of  the  legislature  itself,  which  is  known 
"  to  have  rejected  a  bill  brought  in  for  the  purpose  of  narrow- 
"  ing  the  carrier's  responsibily  in  certain  cases,  on  the  ground 


104b.  THE  LAW  OF  BAILMENTS. 

'*  gleams,  without  tlie  knowledge  and  guidance  of  a  su- 
**  perintending  mind  ;"  but  this  doctrine  loses  its  dignity 


"  of  such  a  measure  being  unnecessary,  in  as  much  as  the  car- 
"  riers  were  deemed  fully  competent  to  limit  their  own  respon- 
"  sibility  in  all  cases  by  special  contract :  considering  also,  that 
"  there  is  no  case  in  the  books,  in  which  the  right  of  a  carrier, 
"  thus  to  limit  b}^  special  contract  his  own  responsibility,  has 
"  ever  been  by  express  decision  denied  ;  we  cannot  do  other- 
"  wise  than  sustain  such  right  in  the  present  instance,  however 
"  liable  to  abuse,  and  productive  of  inconvenience  it  mny  be  ; 
"  leaving  to  the  legislature  (if  it  shall  think  fit)  to  apply  such 
"  remedy  hereafter,  as  the  evil  may  require.''  Since  this  daci- 
sion,  the  legality  of  these  notices  has  been  acquiesced  in  and 
acted  upon,  but  notwithstanding  they  are  esiablished,  the  courts 
discountenancing  the  doctrine,  and  restraining  it  as  far  as  is 
consistent  with  the  rules  of  law,  require  strict  proof  of  ihe  com- 
munication of  the  notice  from  every  carrier,  and  construe  with 
strictness  the  terms  in  which  it  is  framed. 

Communica-  The  notice  must  proceed  from  the  carrier  ;  for  he  is  bound  to 
discharge  himself  from  the  losses  to  which  he  is  subject  by  the 
general  law  of  the  realm,  by  a  notice  given  by  hims^f ;  and  a 
general  usage  of  trade  is  not  evidence  for  that  purpose.  Claik 
V.  Gray,  4  Esp.  178.  But  a  carrier  who  continues  the  business 
of  another  carrier,  is  protected  by  a  notice  given  and  signed  by 
the  former  carrier,  limiting  hi:  responsibility, and  which  the  new 
carrier,  within  the  customer's  knowledge,  keeps  hung  up  in  his 
office.  Evans  v.  Soule,  2  M.  and  S.  1.  But  as  a  personal  com- 
munication is  not  necessary  in  order  to  constitute  a  special  ac- 
ceptance, since  the  knowledge  of  each  other's  minds,  which  is 
the  object  of  a  special  acceptance,  if  effected  by  other  means,  is 
sufficient.  See  Gibbon  v.  Paynton,  4  Burr.  2302.  So,  it  is  not 
requisite  that  there  should  be  any  direct  and  immediate  com- 
munication of  a  general  notice  ;  it  will  be  sufficient  if  the  means 

[  104i.  "J  adopted  are  such  from  whence  a  jury  may  reasonably  infer  that 
a  knowledge  of  its  contents  was  conveyed  to  the  person  dealing 
with  the  carrier. 


THE  LAW  OF  BAILMENTS.  104i. 

and  sublimity  by  a  technical  application  of  it,  which  may 
in  some  instances  border  even  upon  profaneness  ;    and 


A  direct  communicatioa  is  indeed  rarely  made  :  the  means 
usually  adopted  for  this  purpose  are  by  the  publication  of  an 
advertisement  in  a  newspaper,  posting  a  notice  in  some  conspi- 
cuous part  of  the  office,  or  place  where  the  carrier  transacts  his 
business,  or  by  the  circulation  of  hand-bills.  Where  these 
means  are  not  adopted,  or  prove  ineffectual,  other  circumstan- 
ces may  exist  from  whence  a  knowledge  of  the  notice  may  be 
inferred.  But  whatever  the  means  may  be  upon  which  the  car- 
rier relies,  he  must  at  his  peril  take  care  that  every  one  who 
deals  with  him  is  fully  apprised  of  the  limits  to  which  he  intends 
to  confine  his  responsibility.  Butler  v.  Heane,  2  Camp.  415. 
Davis  v.  Willan,  2  Stark.  279- 

Where  the  publication  is  by  an  advertisement  in  a  newspaper,  By  advertise; 
and  there  is  no  direct  proof  of  k'^owledge,  some  evidence  must  ™^"*' 
be  given  to  raise  a  reasonable  presumption  that  a  party  has 
knowledge  of  it  before  such  advertisement  can  be  received  in 
evidence.  In  one  case  where  the  notice  was  inserted  in  the 
Gazette,  that  paper  was  admitted  as  evidence,  although  consider- 
ed of  little  avail,  without  proof  that  the  party  was  in  the  habit 
of  reading  it.  Leeson  v.  Holt,  1  Stark,  N.  P.  C.  186.  But  in  a 
subsequent  case,  Munn  v.  Baker,  2  Stark.  N.  P.  C.  256.  this 
evidence  was  rejected  without  such  proof;  since  a  party  might 
be  expected  to  look  into  the  Gazette  for  notices  of  the  dissolu- 
tion of  partnerships,  but  not  for  notices  by  carriers  of  the  limi- 
tation of  their  responsibility.  There  appears,  therefore,  to  be 
no  distinction  in  this  respect,  between  a  Gazette  and  any  other 
newspaper    See  Phillips  on  Evidence,  323,  3d  Ed. 

In  cases  of  this  description,  a  habit  of  reading  the  paper  in 
which  the  advertisement  is  published,  ahhough  there  is  no  proof 
that  the  party  has  actually  read  or  seen  the  particular  paper  in 
which  it  is  inserted,  will  be  sufficient  evidence  from  whence  to 
infer  a  knowledge  of  the  notice.  Gibbon  v.  Paynton,  4  Bern. 
2298. 

19 


104i.  THE  LAW  OF  BAILMENTS. 

law,  which    is  merely  a  practical   science,  cannot   use 
terms  too  popular  and  perspicuous. 


Notice  affixed      Where  the  notice  is  posted  in  the  office  or  place  where  the 
in  offices.  ...  .  . 

carrier  transacts  his  business,  it  should  be  fixed  in  some  conspi- 
cuous part  in  large  and  legible  characters,  that  persons  deliver- 
ing goods  may  have  ample  means  of  seeing  the  terms  on  which 
r  1041.  1  ^'^^  carrier  conducts  his  business,  and  that  they  cannot  fail  to  do 
so  without  gross  negligence.  Butler  v.  Heane,  2  Camp.  415. 
Clayton  v.  Hunt,  3  Camp.  28,  But  if  a  bill,  which  is  posted 
upon  the  door  of  the  carrier's  office  where  he  receives  and  de- 
livers goods,  blazons  in  large  ch  iracters  the  advantages  of  his 
conveyance,  but  states  in  small  characters  at  the  bottom  of  it 
the  restriction  upon  his  responsibility,  it  will  not  be  sufficient. 
Butler  V.  Heane,  2  Camp.  415.  So,  this  mode  of  communica- 
tion will  be  insufficient,  where  the  goods  are  not  delivered  at 
the  office,  but  collected  by  the  carrier's  cart  sent  round  to  re- 
ceive goods  for  the  waggon,  or  received  at  a  distance  from  the 
office;  in  these  cases,  some  other  mode  of  communication  must 
be  adopted.  Clayton  v.  Hunt,  3  Camp.  27.  lu  the  same  man- 
ner, the  notice  will  be  unavailing  if  it  should  appear  that  the 
person  delivering  the  goods  does  not  in  fact  read  the  notice, 
Kerr  v.  Willan,  2  Stark.  N.  P.  C.  53.  whether  it  happens  not- 
withstanding he  is  capable  of  doing  so,  or  from  ignorance  or  in- 
ability to  read,  Davis  v.  Willan,  2  Stark.  N.  P.  C.  279. 
Hand-bills.  In  the  case  of  publishing  the  notice  by  the  circulation  of 
hand-bills,  the  limitation  should  be  framed  in  clear  and  distinct 
terms,  and  not  at  variance  with  any  other  mode  of  publication 
that  may  be  adopted  ;  for  a  hand-bill,  limiting  the  carrier's  re- 
sponsibility in  a  less  degree  than  a  notice  affixed  in  the  office 
will  control  the  latter,  since  a  person  who  receives  the  hand-Dill 
has  a  right  to  presume  that  what  is  circulated  by  the  carrier's 
authority,  contains  the  whole  of  the  limitations  he  intends  to 
put  upon  his  common  law  responsibility  as  a  common  carrier, 
and  gives  a  full  statement  of  the  special  contract  into  which  he 
enters  with  bis  customers,  Cobden  v.  Bolton,  2  Camp.  108. 


THE  LAW  OF  BAILMEiMS.  104j. 

In  a  recent  case  of  an  action  against  a  carrier,  it  was 
bolden  to  be  no  excuse,  "  that  the  ship  was  tight  when 


If  none  of  these  means  are  adopted,  or  if  they  prove  ineflfec- Particular  ch-,' 
tual,  other  circumstances  may  be  sufficient  from  whence  a  jury 
may  infer  the  required  knowledge.     Thus,  notice  to  the  vendor 
of  goods  that  the  carrier  by  whom  he  sends  tliem  hmits  his  re- 
sponsibility, is  ecjuivalent  to  notice  to  the  vendee  who  directs 
them  to  be  sent,  for  he  is  bound  by  the  acts  of  the  vendor  and 
his  agents  in  this  respect.   Maving  v.  Todd,   1  Stark.  72.     See     [  '^^^   J 
Clarke  v.  Mutchins,  14  East,  475.     So,  an  acquiescence  in  the     • 
loss  of  parcels  sent  by  a  carrier  who  had  published  a  general 
notice,  mid  a  direction  to  the  person  sending  the  parcels  to  in- 
sure them  for  the  future,  would   be  evidence  to  show  a  know- 
ledge of  ihe  notice.     Roskell  v.  Waterhouse,  2  Stark.  N.  P.  C. 
462. 

In  cases  in  which  a  carrier  is  protected  by  a  general  notice,  Waiver, 
he  must  be  cautious  not  to  do  any  act  by  which  the  notice  may 
be  waived  ;  for  if  so,  he  will  lose  the  benefit  to  which  he  would 
otherwise  be  entitled.  Evans  v.  Soule,  2  M.  and  S.  1.  Thus, 
a  carrier  who  had  given  notice  that  he  would  not  be  accounta- 
ble for  goods  of  a  particular  description,  above  the  value  of  51. 
unless  specified,  and  paid  for  as  such  when  delivered,  is  never- 
theless liable  for  damage  done  to  an  article  coming  within  that 
description,  although  the  terms  of  the  notice  were  not  complied 
with,  the  book-keeper  having  been  informed  of  its  value,  and 
desired  to  charge  for  it  what  he  pleased,  which  should  be  paid 
provided  it  was  taken  care  of.  Lord  EUenborough,  C.  J. 
decided,  that  under  these  circumstances,  the  payment  o 
the  money  was  dispensed  with,  and  the  notice  unavailing. 
Wilson  V.  Freeman,  3  Camp.  527.  But  a  carrier  entitled 
to  the  benefit  of  his  notice  does  not  wave  it  altogether,  by  pay- 
ing for  goods  lost  or  damaged,  without  inquiring  whether  it  was 
occasioned  by  the  negligence  of  his  servants  ;  this  is  but  care- 
lessly settling  his  accounts  ;  he  may  wave  a  right,  pro  Itac  vice, 
without  abandoning  it  altogether.  Evans  v.  Soule,  2  M.  and 
S.  1. 


105  THE  LAW  OF  BAILMENTS. 

*'  the  goods  were  placed  on  board,  but  that  a  rat,  by 
"gnawing  out  the  oakum,    had  made  a  small    hole, 


The  mere  knowledge,  however,  that  the  article  is  above  the 
stipulated  value,  will  not  have  this  effect.  A  notice,  that  a  car- 
rier would  not  be  answerable  for  an)'  goods  of  what  nature  or 
kind  soever,  above  a  certain  value,  unless  the  terms  of  the  no- 
tice were  complied  with,  was  considered  not  to  apply  to  a  case 
where  the  carrier  was  perfectly  aware  that  the  goods,  in  this  in- 
stance a  cask  of  brandy,  were  above  the  stipulated  sura,  or 
v/here  the  goods,  being  of  large  bulk  and  known  quality,  must 
be  obviously  above  that  sum.  Beck  v.  Evans,  16  East,  244.  3 
Camp  267.  S.  C.  And  in  another  case,  where  the  known  value 
of  the  goods  was  relied  upon  in  answer  to  a  notice  set  up  by  the 
carrier,  Lord  EUenborough,  C.  J.  observed,  that  the  appear- 
ance of  the  goods  must  necessarily  indicate  that  they  are  above 
the  stipulated  value,  in  order  to  deprive  the  carrier  of  the  bene- 
fit of  his  notice.  Down  v.  Fromont,  4  Camp.  40.  But  in  a 
subsequent  case,  where  a  parcel,  containing  a  quantity  of  gui- 
neas, was  delivered  to  the  book-keeper  of  a  mail-coach  office, 
to  be  forwarded  to  London,  who  was  aware  of  its  contents,  and 
for  greater  seciu-ity  deposited  it  in  the  banker's  bag,  notwith- 
standing which  it  was  lost ;  it  was  decided  by  Gibbs,  C.  J.  that 
the  mere  knowledge  that  the  value  of  the  parcel  exceeded  the 
sum  for  which  the  carrier  would  be  answerable,  unless  they  were 
duly  entered  and  paid  for  accordingly,  did  not  deprive  the  car- 
rier of  the  benefit  of  his  notice  Levy  v.  VVaterhouse,  Selw. 
N.  P.  388.  4th  ed.     1  Price,  280.  S.  C. 

Where  a  notice  requiring  an  additional  premium,  according 
to  the  value  of  the  article,  is  not  complied  with,  it  would  appear 
that  the  owner,  by  declining  to  pay  the  enhanced  premium, 
takes  upon  himself  the  risk  against  which  that  payment  would 
secure  him,  and  cannot  look  to  the  carrier,  to  sustain  it ;  and 
accordingly  the  doctrine  contained  in  the  latter  case  is  that  which 
now  prevails.  The  only  effect  of  knowledge  in  such  a  case 
would  be  to  render  the  carrier  responsible  for  a  degree  of  care 
proportionate  to  the  nature  and  value  of  the  article. 


THE  LAW  OF  BAILMENTS,  K)'5 

through  which  the  water  had  gushed  ;"(&)  but  the  true 

(i)  1  Wils.  part  1.  281.     Dale  and  Hall. 


If  the  notice  has  been  fully  communicated,  and  not  waved  by  Notice,  its 

'  .  form  and  con^ 

any  act  on  the  part  of  the  carrier,  he  will  be  entitled  to  set  it  up  struction 

as  a  limitation  upon  his  responsibility.  The  extent  of  the  pro- 
tection afforded  by  it  will  depend  upon  the  language  in  which  it 
is  framed  ;  yet  as  no  general  fcrm  is  adopted,  a  separate  one 
being  usually  given  by  each  carrier,  no  general  rule  can  be  laid 
down  upon  the  subject.  But  the  language  of  the  notice,  and  the 
te^n^  of  limitation  imposed  by  it,  should  be  clear  and  unambigu- 
ous, and  free  from  all  artifice  or  attempt  to  deceive  ;  for,  if  the 
words  are  doubtful,  they  will  be  construed  against  the  carrier, 
and  any  artifice  will  render  it  unavailing.  See  Butler  v.  Heane, 
2  Camp.  415. 

There  should  also  be  no  doubt  or  contradiction  arising  as  to 
the  extent  of  the  limitatiom  intended  to  be  imposed  ;  for  where  ^  ^^^ 
different  notices  are  published,  which  are  inconsistant  in  their  L  '  *  J 
terms,  the  carrier  will  be  bound  by  that  which  is  least  beneficial  to 
himself,  as  where  a  notice  is  circulated  by  hand-bills,  and  also 
affixed  in  the  office  ;  but  the  limitationimposed  by  the  latter  is 
more  extensive  than  the  former,  he  will  be  bound  by  the  notice 
contained  in  the  hand-bill.  Cobden  v.  Bolton,  2  Camp.  108. 
So,  where  a  notice  was  given  to  the  person  delivering  the  goods, 
which  contained  a  restriction  upon  the  defendant's  liability  in  a 
less  degree  than  a  notice  put  up  in  his  office,  he  was  holden  to 
be  bound  by  the  former.  Mum  v.  Baker,  2  Stark.  N.  P.  C.  256. 
A  few  instances  will  explain  the  manner  in  which  they  have 
been  received  and  interpreted  by  the  court. 

In  a  case  in  which  the  terms  of  the  notice  were,  "  that  cash, 
"  plate,  jewels,  writings,  or  any  such  kind  of  valuable  articles, 
"  would  not  be  accounted  for,  if  lost,  of  more  than  5/.  value, 
"  unless  entered  as  such,  and  a  penny  insurance  paid  for  each 
"  pound  value,"  the  court  were  of  opinion,  that  the  sense  of  the 
printed  conditions  seemed  to  be,  that  the  defendants  were  not 
liable  to  any  extent,  unless  the  parcel  had  been  entered  and 


105a.  THC  LAW  OF  BAILMENTS. 

.  reason  of  this  decision  is  not  mentioned  by  the  reporter ; 


paid  for  as  valuable,  and  the  plaintiff  accordingly  did  not  recover 
any  thing.  Clay  v.  VViUan,  1  Hen.  Black.  298.  See  a  similar 
notice  in  the  cases  of  Nicholson  v.  Wiilan,  5  East,  507.  Harris 
v.  Packwood,  3  Taun.  264.  where  the  plaintiffs,  not  having 
complied  with  its  terms,  were  not  allowed  to  recover  to  any  ex- 
tent. So,  wheret  he  notice  was  in  these  words  :  "  Take  notice, 
"  that  the  proprietors,  &c.  at  this  office,  will  not  be  accountable 
"  &c,  for  any  goods  or  package  whatever,  if  lost  or  damaged, 
"  above  the  value  of  five  pounds,  unless  insured  and  paid,  &c." 
the  court  said,  "  They  could  not  help  giving  effect  to  those 
"  terms  in  the  notice,  by  which,  inasmuch  as  the  goods  in  ques- 
"  tion  were  above  the  value  of  5/.  and  not  insured,  or  paid  for 
"  at  the  time  of  delivery,  the  defendants  could  not  be  held  ac- 
•"  countable  at  all."  Izett  v.  Mountain,  4  East,  R.  371-  But, 
since  a  person  cannot  stipulate  against  the  consequences  of  his 
own  fraud.  Doctor  and  Stud.  278.  Dial.  2  c.  38.  Noy's  Max. 
92.  ante,  47,  a  general  notice,  in  whatever  language  it  may  be 
framed,  will  not  protect  the  carrier  from  any  want  of  care  which 
f  105b.  1  anionnts  to  gross  negligence,  or  from  any  tortious  misfeasance, 
with  reference  to  the  goods,  or  other  circumstances  which  may 
be  considered  as  evidence  of  fraud.  "  These  special  conditions 
"  were  introduced  for  the  purpose  of  protecting  carriers  from 
"  extraordinary  events,  but  were  not  made  to  exempt  them  from 
«  due  and  ordinary  care."  Per  Wood,  B,  in  Bodeuham  v.  Ben- 
nett, 4  Price,  34. 

In  the  same  manner,  since  a  carrier  is  responsible  for  the  acts 
of  his  servant,  in  those  things  which  respect  his  duty  under  him, 
if  the  misconduct  from  which  the  loss  arises  proceeds  from  the 
servant,  the  carrier  will  be  equally  liable,  noihwithstanding  a 
general  notice,  for  it  will  not  protect  him  from  a  responsibility 
for  losses  arising  from  his  misconduct.  Ellis  v.  Turner,  8  T. 
R.  831.  Garnett  v.  Wiilan,  5  B.  and  A.  57.  The  terms,  "  lost 
or  damaged,"  which  are  usually  found  in  the  notice,  are  not  to 
be  construed  in  tiieir  largest  sense,  but  to  be  understood  with 


THE  LAW  OF  BAILMENTS.  105U.. 

.it  was,  in  fact,  at  least  ordinarij  negligence,  to  let  a  rat  do 


this  qualification  ;  "  the  carrier  himself  doing  nothing  by  his 
*'  own  voluntary  act,  or  the  act  of  his  servants,  to  devest  himself 
"  of  the  charge  of  carrying  the  goods  to  the  ultimate  place  of 
"  destination,"  Per  Bailey,  J.  in  Garnett  v.  Willan,  5  Barn, 
and  Aid.  57. 

The  following  cases  will  show  the  degree  of  care  required 
from  a  carrier,  notwithstanding  a  general  notice,  and  the  par- 
ticular circumstances  which  have  been  decided  to  constitute 
such  gross  negligence  as  to  deprive  the  carrier  of  the  benefit  of 
his  notice. 

A  notice  by  several  lighterman  in  these  words,  "  We,  &c.  will 
"  not  be  answerable  for  any  loss  or  damage  which  shall  happen 
"  to  any  cargo  which  shall  be  put  on  board  any  of  our  vessels, 
"  unless  such  loss  or  damage  shall  happen,  or  be  occasioned  by 
"  want  of  ordinary  care  and  diligence  in  the  master  or  crew  of 
"  the  vessel ;   in  which  case  we  will  pay  10/.  per  cent,  upon 
"  such  loss  or  damage,  so  as  the  whole  amount  of  such  payment 
"  shall  not  exceed  the  value  of  the  vessel  and  the  freight ;"  was 
construed  not  to  extend  to  protect  the  carrier  from  a  loss  hap- 
pening by  his  personal  default,  the  not  providing  a  sufficient 
vessel,  but  to  limit  his  responsibility  in  those  cases  only  where 
the  law  would  otherwise  have  made  him  answer  for  the  neglect 
of  others,  and  for  accidents  which  it  might  not   be  within  the 
scope  of  ordinary  care  and  caution  to  provide  against.     Lyon    [   105c.  ^ 
v.  Mills,  5  East,  439.     So,  where  a  notice  was  given,  similar  to 
the  one  in  the  last  case,  by  the  defendant,  who  was  the  owner 
of  a  vessel  trading  from  Hull  to  Gainsborough,  and  had  taken 
on  board  some  goods  belonging  to  the  plaintiffs,  which  were  to 
be  delivered  at  Stockwith  ;  the  vessel  went  safe  as  far  as  Stock- 
with,  and  there  delivered  part  of  the  cargo,  but  the  master  of 
the  vessel  finding  it  inconvenient  to  deliver  the  rest  there,  pro- 
ceeded on  her  voyage,  and  sunk  before  her  arrival  at  Gainsbo- 
rough.    In  an  action  for  the  value  of  the  goods,  the  defendant 
was  holden  responsible  for  the  loss  thus  occasioned  by  the  mis- 
rcmduct  of  bis  servants.     Ellis  v.  Turner,  8  T.  R.  531. 


105c-.  THE  LAW  OF  BAILMENTS. 

i>  sucli  miscliief  in  the  vessel ;  and  the  Roman  law  has,  on 

this  principle  decided,  that  "  si  fullo  vestimenta  poUenda 


In  the  same  manner,  wherea  cask  of  brandy  properly  pack- 
ed, was  delivpred  to  the  def^n'lant,  to  be  carried  from  Shr'-ws 
bury  to  London,  whic  h  in  rhe  course  of  the  journey  b^iiaii  to 
leak  considerably,  within  the  waggoner's  knowledge  :  he,  how- 
ever, proceeded  on  to  Birmingham,  where  he  stiid  th'et-  hours, 
but  took  no  steps  to  stop  the  leakage;  but  proceeding  on  to 
Wolverhampton,  the  next  stage,  where  he  also  made  some 
stay,  he  there  also  neglected  to  do  so,  although  it  was  increas- 
ing ;  however,  at  the  next  stage,  having  some  parcels  to  deliver, 
he  then  took  out  the  cask,  and  the  remainder  of  the  brandy  was 
saved.  The  defendant  was  held  liable  for  the  loss,  notwith- 
standing he  had  circulated  a  general  notice,  known  to  the  plain- 
tiff, but  not  complied  with,  that  he  would  not  be  liable  for  cash, 
bank-notes,  jewels,  and  other  valuable  articles,  or  any  other 
goods,  of  what  nature  or  kind  soever,  above  the  value  of  5/. 
if  lost  or  damaged,  unless  there  was  a  special  agreement,  md 
■an  additional  premium  paid,  upon  the  ground,  that  he  did  not 
stipulate  for  exemption  from  the-  consequences  of  his  own 
misfeasance;  and  if  good-*  are  confided  to  him,  and  it  is  proved 
that  he  has  misconducted  himself,  in  not  pei firming  a  duty 
which  by  his  servant  he  was  bound  to  perform,  that  is  su^h  a 
»  misfeasance,  from  which,  if  the    goods   thereby  become  dama- 

ged, his  notice  will  not  protect  him.  Beck  v.  Evans,  l6  East, 
247.  In  Garnett  v.  Willan,  5  B.  and  A.  61  Mr.  Justice  Hol- 
royd,  commenting  upon  this  case,  observed,  that  the  defendant 
r  lOod.  1  '^"^^  held  liable  on  the  ground  that  the  lo.«s  accrued  from  ihe 
gross  negligence  of  defendant's  servant.  So,  where  a  banker's 
parcel  was  delivered  to  the  driver  of  the  defendant's  coach, 
which  ran  from  Hereford  to  Brecon,  and  thence  to  Carmaiihen, 
directed  to  the  plaintifl''s  correspondent  at  Brecon,  the  book- 
keeper who  received  the  parcel  was  aware  that  it  contained 
bank-notes,  and  the  plaintiff  also  knew  that  the  defendant  was 
not  liable  for  losses  beyond  5/.  unless  an  extra  charge  was 
paid,  which  was  not  done  in  the  present  instance.     The  parcel 


THE  LAW  OF  BAILMENTS.  105d. 

""  acceperit  eaque  mures  roserint,  ex  locato  tenetur,  quia 

debxiit  ab  "  hac  re  cavere.^^c) 

(c)  D.  19  2.  13.  6. 


having  been  lost,  in  an  action  to  recover  the  value,  it  appeared 
that  the  parcel  was  regularly  entered  in  the  vray-biil,  and  put  in 
the  back  sent  of  the  coach  ;  but,  upon  the  arrival  of  the  coach 
at  Brecon,  the  book-keeper  at  that  pl.ice  took  out  the  other  par- 
cels, but  neiiher  looked  for,  nor  made  any  inquiry  about  the 
parcel  in  question,  trusting,  as  he  said,  to  the  coachman,  who 
on  that  day  was  intoxicated,  though  not  so  much  as  to  inca- 
pacitate him  entirely  from  attending  to  his  duty.  The  plain- 
tiff obtained  a  verdict,  which  the  court  refused  to  set  aside, 
upon  the  ground  that  there  was  gross  negligence  in  the  carrier, 
from  which  his  notice  would  not  protect  him.  Bodenham  v. 
Bennett,  4  Price,  31.  Vide  Levi  v.  Waterhouse,  1  Price,  280. 
Birkett  v.  Williams,  2  Barn,  and  Aid  356.  So,  in  a  case  in 
which  a  parcel  was  lost  in  the  course  of  delivery,  where  it  ap- 
jieared  to  be  usual  for  carriers  to  send  two  persons  with  the 
cart  employed  for  that  purpose,  and  that  the  defendant  in 
general  sent  two,  but  in  this  instance  sent  only  one,  during 
whose  absence,  in  delivering  other  parcels,  the  one  in  question 
was  stolen  ;  the  jury  having  found,  that  this  was  gross  negli- 
gence in  the  defendant,  the  court  coincided  in  that  f  pinion, 
and  the  defendant  was  dep)  ived  of  the  benefit  of  the  notice, 
to  which  he  would  otherwise  have  been  entitled.  Smith  v. 
Home,  8  Taun.  144. 

In  an  action,  however,  against  the  proprietors  of  a  stage* 
coach  for  the  loss  of  a  parcel  containing  100/.  it  appeared,  that 
the  coachman  had  given  notice  that  he  would  not  be  answera- 
ble for  money  or  jewels,  or  other  valuable  articles,  unless  he 
had  notice  of  the  valuable  articles  delivered  to  him,  mid  that 
the  plaintiff  had  knowledge  of  the  notice,  but  had  not  gven  the 
required  infocmation.  The  money  was  sent,  hidden  in  hay,  in  r  lAr  ? 
an  old  bag,  and  was  delivered  to  the  defendant's  book-keeper  as 
an  ordinary  parcel,  v/ithout  any  mention  being   made  of  the 

20 


105e.  THE  LAW  OF  BAILMENTS. 

Whatever  doubt  there  may  be  among  civilians  and 
oommon-lawyers  in  regard  to  a  casket,  the  contents  of 


nature  of  it<  contents.  The  defendant  was  holden  not  to  be 
liable  for  the  value  of  the  parcel,  by  reason  of  the  fraud  prac- 
tised upon  him  in  the  concealment  of  it^  conte'ts,  with  full 
knowledge  that  the  defendant  had  refused  to  be  responsible  for 
such  parcels  without  such  information.  Gibbon  v.  Paynton,  4 
Burr.  2298.  See  Batsoo  v-  Donovan,  infra.  So,  where  the 
plaintiffs,  who  were  bankers  at  Berwick  and  Newcastle,  dehver- 
ed  a  box  containing  bills,  cheques,  and  notes,  of  the  value  of 
4O72Z.  to  the  defendants,  who  were  the  owners  of  a  coa<  h  tra- 
vellii)g  through  Berwick  to  Newcastle,  and  had  given  notice  that 
they  would  not  be  answerable  for  parcels  of  value,  unless  they 
were  entered  and  paid  for  as  such ;  the  box  was  delivered  to 
the  defendants  directed  to  the  plaintiffs  at  Newcastle,  with  only 
this  observatiou,  "  It  is  the  box  for  Newcastle."  and  although 
the  plaintiffs  knew  of  the  notice,  no  additional  premium  was 
paid,  nor  was  any  thing  s;>id  as  to  its  contents,  nor  did  it  appear 
that  the  def^^ndants  knew  that  it  contained  articles  of  value. 
The  coach  arrived  at  Berwick  at  twelve  at  night,  and  during  its 
stay  there,  which  was  about  hilf  an  hour,  it  stood  in  the  middle 
of  the  str^^et,  about  thirty  yards  from  the  pavement.  About  a 
quarter  of  an  hour  after  the  arrival  of  the  coach,  the  box  was 
placed  in  the  boot  of  the  coach,  and  a  porter  placed  to  w  Uch 
it,  but,  notwithstanding,  the  parcel  was  stolen  from  the  boot, 
whilst  he  was  so  stationed.  Under  these  circumstances,  the 
jury  having  found  that  the  plaintiffs  had  not  dealt  fairly  with  the 
defendants,  in  not  disclosing  to  them  that  the  box  contained  arti- 
cles of  value,  and  that  the  defendants  were  not  guilty  of  gross 
negligence,  the  court  afterwards  concurred  in  that  opinion,  and 
refused  to  grant  a  new  trial.  Batson  v.  Donovan,  4  Barn,  and 
Aid.  21.  ante,  p.   104. 

A  general  notice  will  also  afford  no  protection  to  a  carrier, 
where  the  loss  arises  from  a  misfeasance,  as  in  the  misdelivery 
of  goods,  whether  committed  by  him  or  his  servants. 

A  counterfeited  order  for  a  quantity  of  cochineal  having  been 


THE  LAW  OF  BAILMENTS.  105e, 

•w}nch  are  concealed  from   the  DEPOSITARY, (J)  it  seems 
to  be   generally  understood,   that  a"  common  carrier  ia 

(rf)  Before,  p.  37,  38,  39. 


sent  to  the  plaintiffs  by  a  letter  signed  in  the  name  of  "J. 
Worthy,''  and  dated  Exeter,  they  having  had  previous  dealings  [  105f.  ~\ 
with  a  person  at  that  place  of  the  name  of  Jonathan  Worthy, 
accordingly  executed  the  order,  and  delivered  a  box  containing 
the  article  in  question  to  the  book-keeper  at  the  defendant's 
office.  The  coach  reached  Exeter  on  Saturday,  and  on  that 
evening  a  person  inquired  if  such  a  box  had  arrived,  and  was 
told  that  parcels  were  not  sent  out  on  Sunday,  but  that  it  might 
be  had  by  being  sent  for.  On  Sunday  night  a  labouring  maa 
called  at  the  coach-office,  and  asked  for  Mr.  Worthy's  box, 
and  upon  being  asked  by  whom  he  was  sent,  he  replied,  he  did 
not  know  the  person,  but  it  was  a  man  in  the  street.  The 
book-keeper  observing  he  had  two  packages  for  Mr.  Wor- 
thy, the  one  a  box,  and  the  other  a  small  parcel,  the  man 
replied,  that  he  h  id  money  to  pay  only  for  the  box,  but  that  he 
would  ask  the  person  who  sent  him,  for  money  for  the  other. 
He  went  out  for  that  purpose,  and  on  his  return  declined  taking 
any  thing  but  the  box,  which  was  accordingly  delivered  to  him. 
The  defendants  proved  that  a  public  notice  not  to  be  liable  for 
packages  of  this  description,  without  an  additional  premium, 
was  affixed  in  their  office  ;  but  the  porter  who  carried  the  parcel 
to  the  office,  swore,  that  he  did  not  see  the  notice,  and  it  was 
not  proved  that  the  plaintiff  himself  had  any  knowledge  of  the 
contents  of  such  notice.  The  defendants,  however,  having 
obtained  a  verdict,  a  new  trial  was  granted,  upon  the  ground  of 
a  misdirection  upon  the  question  of  gross  negligence.  Birkett 
V.  Willan,  2  Barn,  and  Aid.  336.  And  Bailey,  J,  in  comment- 
ing upon  this  case  in  Garnett  v.  Willan,  5  B.  and  A.  58.  observ- 
ed, that  the  carrier,  by  the  wrongful  act  of  his  servant,  had 
devested  himself  of  the  charge  of  carrying  the  parcel  to  its  ul- 
timate place  of  destination  ;  for  it  was  his  duty  to  carry  it 
to  tlie  house  of  the  person  for  whom  it  was  intended  at  Exeter. 


105f.  THE  LAW  OF  BAILMENTS. 

answerable  for  the   loss  of  a  box  or  parcel,  be  he  ever 
so  ignorant  of  its  contents,   or  be  those  contents  ever  so 


if  he  f)und  the  person  for  whom  it  was  directed,  or  to  keep  it 
in  order  to  make  due  inquiry  to  find  him  out.  And  that  the 
court  vffiTQ  of  opinion,  that  this  being  a  case  of  gross  negli- 
gence, was  a  loss  not  protected  by  the  terras  '•  lost  or  dama- 
ged," inserted  in  the  notice.  So,  where  the  plaintiffs  sent  a 
paicfl  containing  a  quantity  of  silks,  and  other  articles,  by 
[  lO-jg'.  ]  che  d(  fendant's  waggon,  directed  to  ''  Mr.  James  Parker,  of 
High-street,  Oxford  ;"  and,  on  the  morning  after  the  arrival  of 
the  waggon,  the  defendant's  porter,  upon  application  to  that 
person,  found  that  the  parcel  was  not  for  him.  Shortly  after- 
warils,  a  person  of  the  name  of  Parker,  of  whom  there  were 
several  resident  in  Oxford,  though  none  in  the  High-street,  of  the 
above  Christian  name,  and  to  whom  goods  had  before  been 
delivered  when  directed  to  Mr.  Parker,  Oxford,  to  be  left  till 
called  for.  came  to  the  defendant's  office,  and  seeing  the  parcel 
directed  as  before  mentioned,  he  claimed  it  as  his  own,  and,  on 
paying  for  the  carriage,  the  parcel  was  delivered  to  him.  The 
defendant  had  given  a  general  notice,  not  to  be  liable  for  par- 
cels similar  t'  the  one  in  question,  unless  specified  when  deli- 
vered at  t'je  office,  with  which  the  plaintifls  had  not  complied. 
In  an  action  to  recover  the  value  of  the  goods,  the  court  held, 
that  as  the  parcel  was  directed  to  a  particular  house,  to  which 
the  rJefendant  was  bound,  by  the  ordinary  course  of  his  trade, 
to  deliver  it,  the  delivery  to  a  person  whose  residence  was  un- 
known, after  it  had  been  refused  by  the  person  to  whom  it  was 
directed,  amounted  to  gross  negligence  in  the  defendant,  for 
which  he  was  responsible,  notwithstanding  his  general  notice. 
Duff  V.  Biidd,  3  Bro.  and  Bing.  177. 

A  carrier,  like  every  other  person  who  enters  into  a  contract, 
is  bound  to  perform  his  engagements  in  the  mode  and  to  the 
extent  for  which  he  has  contracted  ;  and  consequently,  where  a 
carrier  has  undertaken  the  convey-ince  of  goods,  he  cannot  re- 
lieve himself  from  his  responsibility  by  transferring  them  to 
another  carrier,  or  by  sending  them  by  a  different  conveyance 


THE  LAW  OF  BAILMENTS.  105$. 

valuable,  unless  he  make  a  special  acceptance  :(e)  but 

(f)  1  Stra.  145,  T4tchburn  and  White. 


from  that  in  which  he  undertook  to  carry  them.  If  his  engage- 
meats  are  violaied  m  ei  hei  of  these  respects,  and  the  goods  are 
in  consequeQCJ"  lost,  he  will  be  responsible  notwithstanding  he 
may  be  in  other  respf-cts  eutitled  to  the  benefit  of  a  general  no- 
tice. 

The  plaintiffs,  rf^s'iflpnt  at  WTrcGster,  having  written  to  their 
coriespondfiit  at  l.Mndon,  to  sen  >  them  h  quantity  of  goods  "  by 
"  the  retu>-n  rf  mail."  >»  parool  CMjitaining  them  was  accordingly 
delivered  at  thr  coach-office,  wheme  the  Worcester  mail-coach 
proceeded,  and   bo-krd  "  as  for  the  Worcester   mail-coach  to    r  105I1,  j 
"  Worresti^r,"  of  wh  oh  coach  the  defendants  were  the  proprie- 
tors.    The  pauc«  was  accordingly  put  into  that  coach,  and  en- 
tered in  !he  usual  wa)  -bill  as  a  parcel  to  be  carried  from  London 
tt»  Worcester,   aiid  actually  carried  from   the   inn  whence  the 
coach  started,  to  an  inn  in  Oxford-street,  at  which  the  defend- 
ants had  no  office  or  servant,  but  where  passengers  and  parcels 
were  booked  for  their  coach.     At  this  place  the  parcel  was  taken 
out  of  the  mail-conch,  and  there  left  to  be  forwarded  on  the  fol- 
lowing day  by  another  Worcester  coach,   in  which  one  of  the 
defeudanri!  had  no  interest,  and  from  which  the  parcel  was  lost, 
but  by  what  means  did  not  appear.     The  defendants  had  given 
a  general  notice,  which  was  known  to  the  plaintiffs,  not  to  be 
liable  for  the  loss  or  damage  of  goods  of  the  value  of  those  iu 
question,  without  an  additional  premium  beyond  the  common 
carriage  price,  but  which  was  not  done.     Under  these  circum- 
stances, the  defendants  were  holden  responsible  for  the  loss,  on 
the  ground  that  the  delivery  and  acceptance  of  the  parcel  on 
the  part  of  the  defendants,   entitled  the   plaintiffs  according  to 
their  contract,  not  merely  to  the  care  and  diligence  of  one,  but 
of  both  of  the  defendants  ;  and  that  as  they  had,  by  the  act  of 
their  servant,  wrongfully  devested  themselves  of  the  charge  of 
carrying  the  parcel  to  its  ultimate   place  of  destination,  the}' 
were  not  protected  by  their  notice.     Garnett  v.  Willan,  C>  B. 


105h.  THE  LAW  OP  BAILMENTS. 

gross  fraud  and  imposition  by  the  bailor  will  deprive  hira 


and  A.  53.     So,  where  a  banker's  parcel  of  considerable  value 
was  delivered  to   the  defendants,  addressed  to    the  plaintifl^'s 
clerk,  with  the  direction,  "  R.  Angier,  Christ-church,   Hants, 
*'  per  mail,"  and  entered  by  the  defendants'  book-keeper,  to  go 
by  the  mail  of  which  they  were  the  proprietors  ;  but,  instead  of 
sending  it  by  this  conveyance,  the   defendants  sent  it  by  the 
Southampton  light  coach,   the  proprietors  of  which  were  difl'er- 
ent  from  those  to  whom  the  mail  belonged,  and    by  which  the 
risk  of  the  conveyance  was  increased.     The  parcel  having  been 
lost,  the  defendants,  upon  the   principle  of  the  foi  mer  case  of 
Garnett  v.  Willan,  were  holden  responsible  for  the  value,  not- 
withstanding a  general  notice,  to  which  they  would  otherwise 
have  been  entitled,  not  merely  as  a  case  of  negligence  in  the 
performance  of  their  contract,  but  of  a  refusal  altogether  to  per- 
form it,  in  receiving  the  parcel  to  be  conveyed  by  one  coach, 
and  sending  it  by  another,  of  which  all  the  same  persons  were 
^   105i.  ]   not  proprietors.    Sleat  v.   Fagg,  5  B.  and  A.  342.      But  where 
the  defendants  were  the  owners  of  two  coaches,  a  mail  and  a 
heavy  coach,  travelling  to  the  same  place,  and  a  parcel  was  de- 
livered and  accepted  for  the  purpose  of  being  sent  by  the  mail, 
but  by  an  entry  in  the  defendants'  book,  it  appeared  to  have 
been  booked  for  the  heavy  coach,  but  no  evidence  was  given 
that  it  was  put  into  or  carried  by  either  coach,  or  in  what  man- 
ner the  parcel  was   lost,  whether  in   the  warehouse,  or  in  the 
course  of  its  conveyance,  the  defendants  were  holden  not  to  be 
deprived  of  the  benefit  of  their  general  notice.     On  the  part  of 
the  plaintiffs  it  was  contended,  that  the  defendants  were  liable 
for  the  value   of  the  parcel,  notwithstanding  a  notice  had  not 
been  complied  with,  on  the  ground  that  the  loss  had  not  been  in- 
curred in  the  course  of  their  employment  as  carriers,  but  occa- 
sioned by  an  act  of  tortious  conversion  in  direct  contravention 
of  the  terms  on  which  the  goods  were  delivered  to  and  accepted 
by  them.     But  it  was  observed  by  Lord  Ellenborough,   C.  J., 
delivering  the  judgment  of  the  court,  "  that  to  found  this  argu- 
'■'  ment,  there  was  no  other  evidence  but  the  mere  fact  of  book- 


THE  LAW  OF  BAILMENTS.  105i. 

of  his  action,  and  if  there  be  proof  that  the  parties  were 


"  ing  the  goods  for  a  different  coach,  and  a  subsequent  non-de- 
"  livery,  which  can  amount  to  no  more  than  a  negligent  dis- 
"  charge  of  duty  in  their  character  of  carriers,  and  not  to  an  en- 
*'  tire  renunciation  of  that  character,  and  of  the  duties  attached 
"  to  it,  so  as  to  make  them  guihy  of  a  distinct  tortious  misfea- 
*' sance  in  respect  to  the  goods  in  question."  Nicholson  v.  Wil- 
lan,  5  East,  506.     See  Garnett  v.  Willan,  5  Barn,  and  Aid.  59. 

'\  he  duty  of  a  carrier  with  respect  to  the  delivery  of  goods  at  Obligation  te 
the  houses  of  the  persons  to  whom  they  are  directed,  is  not  es- 
tablished with  the  same  precision  as  the  duties  which  have  been 
before  enumerated.  Where  it  is  the  general  course  of  his  trade 
to  deliver  goods  iu  this  manner,  he  will  be  bound  to  do  so,  for 
by  the  receipt  of  them,  he  will  be  understood  to  have  contract- 
ed for  their  conveyance  on  the  same  terms,  and  in  the  same 
manner  in  which  he  usually  transacts  his  business  with  respect 
to  other  persons.  Golden  v.  Manning,  3  Wils.  429.,  2  Blk.  9l6. 
S.  ('.  Hyde  v.  The  Trent  and  Mersey  Navigation  Company',  5 
T.  R.  396.  But  where  no  such  usage  exists,  it  has  not  been 
judicially  determined  that  by  the  common  law  the  carrier  is 
bound  to  perform  this  duty,  although  there  are  various  dicta  [  105k.  T 
which  incline  to  support  that  proposition.  In  the  case  of  Hyde 
V.  The  Trent  and  Mersey  Navigation  Company,  5  T  R,  396., 
where  the  general  question  was  agitated,  Ashhurst,  Buller,  and 
Grose,  J.  were  of  opinion  that  the  carrier  was  so  bound ;  but 
Lord  Kenyon,  C.  J,  observed,  that  the  leaning  of  his  mind  then 
was  that  the  carrier  was  not  liable  to  that  extent.  In  a  more 
recent  case,  it  was  also  observed,  that  a  carrier  does  not  only  en- 
gage safely  to  carry  goods,  but  ;  Iso  to  deliver  them.  Per  Wood, 
B.  in  Bodenham  v.  Bennett,  4  Pr.  34.,  cited  by  Dallas,  C,  J.  in 
Duff  V.  Budd,  3  Bro.  and  Bing.  182.  But  if  a  parcel  is  direct- 
ed to  a  person  generally,  as  to  A.  B.  at  Exeter,  without  specify 
ing  his  place  of  abode,  the  carrier  is  not  bound  to  carry  that 
parcel  to  any  place,  but  will  fully  discharge  his  duty  by  deliver- 
ing it  at  his  office,  to  any  person  coming  from  A.  B.,  or  whom 
he  may  reasonably  presume  to  come  from  him.     Per  Abbott. 


10»k.  THE  LAW  OF  BAILMENTS. 

apprised  of  each  other's  intentions,  although  there  was 


C.  J.  Birkett  v  Willan,  2  Barn,  and  Aid.  3.'J8.  But  Bailey,  J. 
in  commenting  on  this  case,  in  Garnett  v.  Willan,  5  Barn,  and 
Aid.  58.  observed,  that  it  was  the  carrier's  duty  to  carry  the 
parcel  tt  the  house  uf  the  person  for  wh<  m  it  was  intended  at 
Exeter,  if  he  found  the  person  to  whom  ii  wa.>  directed,  or  to 
keep  it  in  order  to  make  due  inquiry  to  fiij-l  hm  out. 

In  the  case  of  foreign  commerce,  where  the  carriage  of  goods 
is  regulated  by  a  bill  of  lading,  or  other  instruinent^  this  duty  is 
generally  governed  by  the  particular  terms  of  the  engagement. 
Catley  v.  Wintringham,  Penke  N.  P.  C.  140.  Strong  v.  Natally, 
1  Bos.  and  Pul.  N.  R.  l6.  Gosling  v.  Higgins,  1  Camp.  451. 
Abbott  on  Shipping. 
Corner's  The  primary  and  important  right  which  the  carrier  possesses, 

^'^ '  *■  is  to  secure  the  payment  of  his  charges  for  the  carriage  of  the 

goods,  and  for  this  purpose  the  law  has  invested  him  wich  ample 
renoedies.  He  may,  in  the  first  instance,  refuse  to  take  charge 
of  goods  unless  previously  paid  the  price  of  their  c-'rriage,  or 
having  conveyed  them  to  their  place  of  destination,  he  may  de- 
cline delivering  them  without  such  previous  payment  Per  Ab- 
bott, C.  J.,  5  Barn,  and  Aid.  353.,  and  in  the  event  of  waiving 
these  rights,  he  may  maintain  an  action  against  the  consignor  by 
the  common  law.  I>Ioore  v.  Wilson,  I  T.  R.  660.  or  against  the 
con-ignee  by  agreement,  either  expressed  or  implied, 
ravment  on  A  carrier  is  not  compellable  to  receive  goods  without  a  previ- 
r*^lo4i  -1  ous  tender  of  the  charge  of  their  carriage,  vide  ante,  p.  I03e.  n. 
but  this  is  seldom  the  object  of  discussion,  since,  in  the  event 
of  the  performance  of  the  contract,  the  carrier  is  entitled  to  de- 
tain them  until  his  charges  are  paid.  This,  which  is  a  far  more 
important  privilege,  is  enjoyed  by  a  carrier  in  common  with 
every  other  bailee,  and  exists  in  all  cases  unless  extingui>hed  by 
a  special  agreement  with  which  it  is  inconsistent.  Per  Gibbs, 
C.J.  in  Hutton  v.  Bragg,  2  Marsh  345.  A  review  of  some  of 
the  leading  principle.?  by  which  this  right  is  governed  will  show 
its  particular  natui-^,  and  the  protection  it  confers,  so  far  as  re- 
lates to  the  present  subject. 


1 


THE  LAW  OF  BAILMENTS.  1051. 

A  right  of  lien  consists  in  a  power  of  detaining  articles,  until  Right  of  Lien, 
the  charges  for  hibour  or  expense  incurred  upon  them  has  been 
satisfied,  and  is  of  two  descriptions,  a  particular  lien  which  is 
given  and  favorably  interpreted  by  vhe  common  law,  and  a  gen- 
eral one  which  exists  only  by  u.sage  or  agreement  between  the 
parties,  and  is  construed  with  more  or  less  strictness  according 
to  its  object.  Per  Heath,  J.  3  Bos.  and  Pul.  494.  Lord  Xoa- 
yon,  C.  J.  1  Esp.  N.  P.  C.  109.  Lord  Mansfield,  C.  J  4  Burr. 
2221.  Kirkman  v.  Shawcross,  6  T.  R.  14.Rushforth  v.  Hadfield, 
6  East,  519.   7  East,  224,  2  Rose,  355.  1  Dane  Abr.  262. 

This  right,  which  probably  owes  its  origin  to  the  obligation 
imposed  by  law  upon  persons  professing  to  perform  particular 
services  which  public  convenience  requires,  should  not  be  deni- 
ed, and  extended,  upon  principles  of  natural  justice,  to  every 
case  where  expenses  have  been  incurred  upon  a  particular  ar- 
ticle, is  like  a  distress  at  common  law,  simply  a  mean  of  securing 
and  compelling  a  payment  of  the  charges  incurred,  and  does 
not  extend  to  authorize  a  sale  of  the  article  for  that  purpose. 
2  Roll.  Abr.  85. (A.)  pi.  5. 1  Vent.  71.  Yelv.  67.  Jones  v.  Thur- 
loe,  8  Mod.  172.  Jones  v.  Pearle,  1  Str.  556.  ante,  p.  95  a.  n. 
Chase  v.  Westmore,  5  Maule  aud  Selw.  185.  Such  a  power, 
however  requisite  in  certain  cases  to  render  the  right  efi'ectual, 
is  not  recognized  by  the  law  of  England,  although  to  be  found 
in  the  civil  law,  as  existing  in  the  individual  entitled  to  the  right, 
or  in  any  tribunal  under  whose  sanction  and  controul  it  might 
be  exercised      See  1  Bulst.  207.  Bacon's  Abr.  tit.  Inns. 

It  is  a  term  implied  by  law  in  the  contract,  but  may  be  waived 
by  a  special  agreement  with  which  it  would  be  inconsistent : 
"Where  there  is  an  express  antecedent  contract  between  the  f  10.5lll.  1 
parties,  a  lien  which  grows  out  of  an  implied  contract  does  not 
arise.''  Per  Lord  EUenhorough,  C.  J.  in  Stevenson  v.  Blake- 
lock,  1  Maule  and  Sel.  543.  See  also  Cowell  v.  Simpson,  16 
Yes.  275.  Chase  V.  Westmore,  5  Maule  and  S.  186.  In  the 
older  books,  indeed,  it  is  laid  down,  that  if  there  is  a  special 
agreement  there  can  be  no  lien,  and  various  authorities  ma}"^  be 
cited  in  support  of  that  proposition.  In  Bacon's  Abr.  tit.  Tro- 
ver, E.  44.  "  If  a  person,  who  would  otherwise  have  a  right  to 
(fletaio  the  personal  chattel  of  anotlier,  for  the  trouble  or  exnense 

•21 


lOom.  THE   LAW  OF   BAILMENTS. 

he  has  been  at  concerning  it,  contract  to  be  paid  a  sura  certain 
for  the  trouble  or  expense,  he  does  thereby  waive  the  right  of 
detaining  the  chattel."  See,  also,  2  Roll.  Abr.  92.  M.  pi.  2.  G 
Cro.  Car.  271.  Yelv.  66.  Breniin  v.  Cnrrinl,  Bull.  N.  P.  45  a. 
Bridgman's  Ed.  Collins  v.  Ongly,  per  Holt,  C.  J.  cited  by  Py- 
der,  C.  J.  in  Brenan  V.  Currint,  MSS.  Selw.  Nisi  Prius,  1280, 
4  Ed.  But  this  doctrine  has  in  some  late  cases  been  restricted 
to  agreements  prescribing  a  particular  time  and  mode  of  pay- 
ment which  would  be  incompatible  with  the  implied  right.  Per 
Gibbs,  C.  J.  inHutlon  v.  Bragg,  2  iMarsh.  345.  Chaste  v.  West- 
more,  5  Maule  and  Selw.  180.  And,  therefore,  an  agreement  for 
the  payment  of  a  fixed  sum  will  not  have  that  effect,  as  Avhere  a 
quantity  of  corn  was  delivered  to  a  miller  to  grind,  for  which  it 
was  agreed  that  15s.  per  load  should  be  paid,  but  no  time  fixed 
for  the  payment ;  in  this  case,  the  nniller  was  decided  to  be  en- 
titled to  his  right  of  lien.  Chase  v.  Westmore.  supra.  But 
where  by  the  usage  of  trade  the  warfage  dues  upon  goods  were 
to  be  paid  by  the  importer  at  the  Christmas  following  the  impor- 
tation, whether  or  nor  they  were  in  the  mean  time  removed,  and 
the  goods  were  sold  in  the  preceding  October,  ami  part  deliver- 
ed before  Christmas  ;  the  wharfinger,  in  consequence  of  the 
bankruptcy  of  the  importer  in  the  March  following,  detained 
the  residue  for  his  lien  in  respect  of  the  charges  for  wharfage, 
the  court,  however,  held  that  he  was  not  entitled  to  do  so,  since 
not  having  any  such  right  at  the  time  of  the  sale,  he  could  ac- 
quire none  against  the  buyer  by  the  subsequent  default  of  the 
seller.  Crawshay  v.  Homfray,  4  Barn,  and  Aid.  50.  So  a  ship- 
[  lOoii.  1  \vriglit  in  the  river  Thames  has  no  lien  on  a  ship  taken  into  his 
dock  to  be  repaired  without  an  express  agreement  for  that  pur- 
pose, since,  by  the  usage  of  trade,  credit  for  repairs  is  given  to 
the  owner  of  the  ship  ;  but  it  would  be  otherwise  where  payment 
was  to  be  made  in  ready  money,  or  there  was  an  agreement  that 
security  should  be  given  when  the  work  was  completed.  Railt 
V.  Mitchell,  4  Camp.  146.  See  Horncastle  v.  Farren,  3  Barn, 
and  Aid.  497. 

A  right  of  lien,  however,  is  only  coexistent  with  the  jjossessioa 
of  the  article,  and  being  once  parted  with,  cannot  be  revived  by 
any  subsequently  ac(|uired  possession.     Kinlock  v.  Craig,  3  T. 


THE  LAW  OF  BAILMENTS,  lOon. 

R.  119-  Sweet  v  Pym,  1  East,  4.  If  thcrelure,  a  person  has  a 
lien  upon  goods  in  his  possession,  and  dchver  them  to  a  carrier 
consigned  on  account, and  at  tlie  risk  of  his  principal,  he  cannot, 
upon  the  event  of  his  hankruptr\',  stop  them  in  transitu,  and  pro- 
cure them  to  he  re-delivered  to  him  hy  virtue  of  a  hill  of  lading 
signed  by  the  carrier  in  the  course  of  the  voyage.  Sweet  v.  ym  , 
sii[)ra.  See  Man  v.  ShiA'ner,  2  East,  523.  Hunter  v.  Prinsep, 
JO  East,  378.  And  being  also  of  a  personal  nature,  it  cannot 
be  transferred  to  another  by  any  tortious  ])ledge  of  the  proper- 
ty iu  respect  of  which  it  is  claimed.  M'Combie  v.  Davis,  7 
East,  6.  Daubigny  v.  Duval,  5  T.  R  606.  But  it  may  be  other- 
wise, where  one  who  has  a  lien  delivers  the  goods  to  a  third  per- 
son as  a  security  with  notice  of  his  lien,  and  appoints  him  to 
continue  in  possession  as  his  servant  for  the  preservation  of  his 
lien.   M'Conibie  v.  Davis,  7  East  6. 

A  shipmaster  does  not  forfeit  his  lien  for  freight  by  deposit- 
ing the  goods  in  the  King's  warehouse,  according  to  the  requi- 
sition of  an  Act  of  Parliament.  Per  Lord  Ellenborough,  in 
Ward  V.  Felton,  1  East  R.  .^07. 

Having  premised  these  general  principles,  it  may  be  observ-  Particular litjn 
ed  that  a  particular  lien  extends  only  to  the  individual  article  in 
respect  of  which  the  charges  have  been  incurred,  for  which  the 
right  is  claimed.  Per  Heath,  J.  3  Bos.  and  Pul.  494.  See  4  Barn. 
and  Aid.  343. ;  [and  Hartshorne  &  Yanmator  ads.  Johnson.  2 
Halst.  Rep.  108.]  But  where  a  cpiantity  of  goods  are  delivered 
in  separate  quantities  at  different  times,  yet  if  they  form  one  en- 
tire agreement,  the  right  of  lien  attaches  upon  eacii  part  for  the 
expenses  incurred  with  re5pect  to  the  whole.  Chase  v.  West- 
more,  5  M.  and  S.  IS  I.  Blake  v.  Nicholson,  3  M.  and  S,  167. 
See  Sodergren  v.  Flight,  cited  6  East,  622.  A  carrier,  hy  the  [  105o.  ] 
common  law,  is  entitled  to  this  right,  and  may  justify  the  deten- 
tion of  goods,  until  he  is  paid  the  carriage  price  of  the  particular 
articles  on  which  his  hire  is  due.  Skinner  v.  Upshaw,  I  Lord 
Rnym.  752.  [l  Cons.  Rep.  S.  C.  186.  Hay  ward  v.  Middlelon, 
2  Halst.  Rep.  108  Hartshorne  and  Yanmator  ads.  Johnson.] 
So,  the  master  of  a  vessel  has  a  lien  upon  the  luggage  of  a  pas- 
senger for  the  passage-money  agreed  to  be  paid  ;  or  when  there 
is  no  agreement  for  a  fixed  price,  until  he  is  paid  a  reasonable 


105o.  THE  LAW  OF  BAILMENTS. 

sum.  Wolf  V.  Summers,  2  Camp.  631.  In  the  same  manner,  a 
carrier  hy  water  is  entitled  to  a  lien  for  his  freight.  Sodergren 
V.  Flight,  cited  6  East  li.  622. 

[Freight  is  a  li6n  upon  the  cargo.  Cowing  v  Snow,  11  Mass. 
Rep.  415.  Gracie  v.  Palmer,  8  Wheat.  Rep.  605.  4  Mass.  Rep. 
91.    6ii)id.  422.] 

And  where  the  owner  of  a  vessel  covenanted  by  charter  party 
to  let  the  vessel  on  freight,  and  to  deliver  the  cargo  in  good  con- 
dition, and  the  freighters  covenanted  to  pay  the  freight  on  de- 
livery of  the  cargo,  part  in  money,  and  the  remainder  by  bills 
at  four  monihs  ;  it  v/as  decided,  that  the  owner  might  detain 
the  caigo  until  payment  of  the  freight,  the  delivery  of  the  cargo 
and  the  payment  of  the  freight  being  concurrent. acts.  Yates  v. 
Rollin,  8  Taun.  293.  See  Hutton  v.  Bragg,  2  Marsh.  345. 
Christie  v.  Lewis,  2  Bro.  and  Bing.  410.  Saville  v.  Campion,  2 
Barn,  and  Aid.  503. 

A  captain  of  a  vessel  who  is  personally  responsible  for  articles 
furnished  to  the  ship,  is  thereby  entitled  to  a  lien  on  the  goods 
as  well  as  freigh; ;  and  if  a  consignee,  after  notice  from  the 
captain,  pay  the  freight  to  the  owners,  he  will  still  remain  liable 
to  the  captain.  Waring  v.  Bell,  4  Esp.  i\.  P  C.  22.  But  xhe 
cantain  has  no  lien  on  the  ship  for  money  expended,  or  debts 
incurred  for  repairs  done  abroad  in  the  course  of  the  voyage. 
Hussey  v.  Christie,  9  East,  426.  See  Abbott  on  Shipping,  137. 
4th  ed. 
General  lien.  A  riffht  of  general  lien  is  not  limited  to  the  particular  article 
upon  which  expenses  have  been  inrurred,  but  extends  to  all 
goods  in  the  ])ossossion  of  the  party  claimmg  it  for  the  balance 
of  the  general  account  between  the  parties.  Per  Heath,  J.,  3 
Bos.  and  Pul-  4<;4.  The  common  law  does  not  recognize  this 
right,  but  it  may  exist  by  special  agreement ;  and  in  the  case  of 
a  common  carrier,  upon  whom  the  law  imposes  certain  duties, 
stricter  proof  is  required  than  in  the  case  of  persons  who  are 
not  subject  to  such  obligations.  "  Growing  liens  are  always  to 
"  be  looked  at  with  jealousy,  and  require  stronger  proof;  they 
"  are  encroachments  on  the  common  law."  Per  Lord  Ellen- 
borough,  C.  J.,  in  Rushforth  v.  Hadfield,  7  East,  229- 


THE  LAW  OF  BAILMENTS.  106 

A  carrier  may  establish  a  claim  to  this  right  by  a  special  con- 
tract with  his  customer  in  the  particular  case,  or  it  may  be  infer- 
red from  the  usual  course  of  their  dealings.  Rushforth  v.  Had- 
field,  6  East,  522.,  7  East,  224.  So,  a  general  notice  may  be 
sufficient  for  this  purpose.  But  notice  given  by  a  carrier  "  that 
"  all  goods  from  whomsoever  received,  or  to  whomsoever  be- 
"  longing,  should  be  subject  to  a  lien,  not  only  for  the  freight  of 
"  the  particular  goods,  but  also  for  any  general  balance  that  may 
"  be  due  from  the  person  to  whom  they  are  consigned  or  ad- 
"  dressed,"  was  decided  not  to  extend,  as  against  the  principal, 
to  goods  transmitted  to  a  mere  factor  for  the  debt  due  by  him  to 
the  carrier.  However,  such  an  agreement,  it  appears,  between 
the  carrier  and  the  owner  of  the  goods,  may  be  binding.  Wright 
V.  Snell,  5  B.  and  A  350.  The  right  may  also  exist  by  usage 
of  trade  ;  but  to  establish  the  claim  upon  this  ground  it  is  neces- 
sary that  the  usage  should  be  general  and  uniform,  and  of  such 
notoriety,  that  persons  dealing  with  the  carrier  may  fairly  be 
presumed  to  have  dealt  with  him  with  reference  to  such  usage. 
Evidence  of  a  few  recent  instances  of  the  exercise  of  this  right 
by  carriers  will  not  be  sufficient.  Rushforth  v.  Hadfield,  7  East, 
224.  But  in  an  action  of  trover  against  a  carrier  for  goods 
which  he  claimed  to  detain  by  reason  of  a  general  lien,  this 
right  was  established,  by  evidence  of  the  defendant  having  be- 
fore claimed,  and  been  allowed  to  retain  for  his  general  balance, 
both  against  bankrupt  estates  and  solvent  customers,  and  also 
by  the  evidence  of  a  principal  carrier  on  the  western  road  to  the 
same  effect,  respecting  himself  Aspinall,  assignee  of  Howarth, 
V.  Pickford,  3  Bos.  and  Pul.  44.  n.  (a.) 

In  cases  of  this  description,  the  agreement,  or  usage  relied 
upon,  must  in  general  be  proved  ;  but  the  proof  of  usage  of  trade 
has  in  some  cases  been  dispensed  with.  In  the  case  of  Naylor 
V.  Mangles,  1  Esp.  N.  P.  C.  109.,  where  the  sole  question  was, 
whether  a  wharfinger  had  a  lien  for  the  balance  of  his  general 
account  upon  the  goods  in  his  possession.  Lord  Kenyon,  C.  J., 
observed,  that  a  lien  from  usage  was  matter  of  evidence,  and 
that  the  usage  in  the  present  case  had  been  proved  so  often,  that 
it  should  be  considered  as  a  settled  point,  that  the  wharfinger 
had  the  lien  contended  for.     And  in  the  case  of  Spears  v.  Hart- 


106a.  TIIK  LAW  OF  BAILMENTS. 

lev,  3  Esp.  N  P.  C.  81.  Lord  Eldon,  C.  J.,  on  the  authority 
of  the  preceding  case,  held  that  a  wharfinger  has  such  hen  ;  and 
further,  that,  although  ihc  statute  of  limitations  had  run  against 
a  demand,  if  the  creditor  obtains  possession  of  goods  on  which 
he  has  a  lien  for  a  general  balance,  he  may  hold  tliera  for  that 
demand  i)v  virtue  of  the  lien,  for  the  debt  is  not  discharged  by 
the  statute,  but  only  the  remedy.  See  Crawshay  v.  Hoinfray,  4 
Barn,  and  Aid  00.  An  usage  for  carriers  to  retain  goods  as-a 
lien  for  a  general  b'llance  of  account  between  them  and  the  con- 
signees, cannot  aflect  the  right  of  the  consignor  to  stop  the  goods 
in  transitu.  Oppenheim  v.  i\ussel,  3  Bos  and  Pul.  42.  So,  a 
carrier  who,  by  the  usage  of  a  particular  trade,  is  to  be  paid  for 
the  carriage  of  goods  by  the  consignor,  has  no  right  to  retain 
them  ngiinst  'he  consignee  for  a  general  balance  due  to  him  for 
the  carriage  of  other  goods  of  the  same  sort  sent  by  the  con- 
signor.    Butler  V.  Woolcott.  2  Bos.  and  Pul.  N.  R.  64. 

Consignor'!  The  consignor   is   responsible  by  law  to  the  carrier  for  his 

charges  in  the  carriage  of  the  goods,  and  the  carrier  may  con- 
sequently maintain  an  action  against  him  for  their  amount.  In 
an  action  by  the  consignors  for  not  safely  carrying  and  deliver- 
ing goods  sent  by  the  plaintifls,  the  declaration  alleged  that  the 
defendant  undertook  to  carry  the  goods  ''  for  a  certain  hire  and 
'■  reward  to  be  paid  by  the  plaintifls,''  and  upon  proof  at  the 
trial  that  the  consignee  had  agreed  to  pay  it,  the  plaintifls  were 
nonsuited  ;  but  upon  application  to  set  aside  this  nonsuit,  Bul- 
ler,  J.,  before  whom  the  cause  was  tried,  observed,  that  on  con- 
sidering the  question,  lie  found  he  had  been  mistaken  in  point 
of  law ;  for  that,  whatever  might  be  the  contract  between  the 
vendor  and  the  vendee,  the  agreement  for  the  carriage  was  be- 
tween the  carrier  and  the  vendor,  the  latter  of  whom  was  by 
law  liable  ;  and  the  other  two  judges  being  of  the  same  opinion, 
tlie  rule  was  made  absolute  without  further  argument.  Moore  v. 
^Vilson,  1  T,  U.  Gj9.  But  see  Daws  v.  Peck,  8  T.  R.  334.  In 
an  action  for  freight,  damage  done  to  the  goods  by  bad  stowage 
cannot  be  given  in  evidence,  either  as  a  complete  defence,  or 
in  mitigation  of  damages.   Sheels  v.  Davis,  4  Camp,   il9. 

Ue  ivery  be-        r^^^^  seller  is  bound  to  follow  the  directions  prescribed  bv  the 

twecn    I.  on-  ' 

sitcnor  ami      purchaser,   in   the  execution   of  an   order   for   sending  goods. 

i-'onsignce. 


THE  LAW  OF  BAILMENTS.  106a. 

Cooke  V  Ludlow,  2  N.  P.  1  !9  Hawkins  v,  Kutt,  Peake,  186., 
since  he  sustains  the  risk  of  their  conveyance;  but,  in  the  ab-  T  106b.  l 
sence  of  any  specific  directions  upon  that  subject,  the  seller  will 
be  considered  as  duly  performinp;  his  part  of  the  contract,  if  he 
send  them  by  the  usual  and  accustomed  mode  of  conveyance. 
Clark  V.  Hutcliins,  14  East,  475.  1  Stark.  N.  P  C.  17.  'i  he 
sellei*  in  forwarding  goods  will  not  be  responsible  for  a  loss 
where  he  has  not  been  guilty  of  negligence;  as  where  the  plaintiff 
received  an  order  to  send  certain  goods  to  the  defendant  living 
at  Bristol,  by  any  conveyance  which  would  reach  that  phce,  in- 
forming him  when  they  were  sent,  that  he  might  know  when  to 
expect  them  :  the  goods  were  accordingly  delivered  to  a  wharf- 
inger to  go  by  a  particular  vessel,  directed  to  the  defendant,  and 
a  letter  written  informing  him  of  the  fact ;  this  vessel,  htuvever, 
being  full,  they  did  not  go  by  that  conveyance,  but  were  sent  by 
another  vessel  on  the  following  dny.  The  defendant  made  re- 
pealed inquiries  after  the  goods  without  success,  but  never  wrote 
to  the  plaintiff  to  apprize  him  of  the  circumstance.  The  goods 
having-been  lost,  it  was  decided,  in  an  action  j'gi'.inst  the  defend- 
ant for  the  value  of  the  goods,  that  the  wharfinger  was  not,  in 
any  degree,  the  agent  of  the  plaintiff,  but  of  the  defendant,  by 
whose  order  and  direction  the  goods  were  sent,  and  that  no  neg- 
ligence was  imputable  to  the  plaintiff,  for  not  inquiring  after  tlie 
vessel,  but  that  the  defendant  should  have  given  due  notice  that 
they  had  not  been  received.  Cooke  v.  Ludlow,  2  Bos.  and  Pul. 
N.  R.  119. 

The  effect  of  a  delivery  of  goods  to  a  carrier,  on  bchrdf  of  the  EiTect  of  such 
buyer,  is  to  vest  the  property  in  him  absolutely  from  the  time  dt-Hveiy. 
of  the  delivery,  and  to  render  him  responsible  for  any  injury 
they  may  afterwards  sustain  Dutton  v.  Solomonson,  3  Bos.  and 
Pul.  582.  Dawes  v.  Peck,  8  T.  R.  330.  And  if  the  consignee 
at  the  moment  of  delivery  is  under  age,  although  he  attain  his 
full  age  before  he  receives  the  goods,  he  may  rely  upon  his  in- 
fancy as  a  defence  to  an  action  for  the  value  of  the  goods.  Cirif- 
fm  v.  Lanfield,  3  Camp.  255.  This  general  principle  is  not 
affected  by  the  consignor  paying  for  the  booking  of  tlie  goods. 
Dawes  v.  Peck,  8  T.  R.  330.,  or  by  his  beuig  responsible  to  the 
carrier  for  the  price  of  tlie  carriage,  for  that  docs  not  make  hint 


106b.  THE  LAW  OF  BAILMENTS. 

an  insurer  of  the  goods  while  under  the  carrier's  care.    King  v. 
Meredith,  2  Camp.  N.  P.  C.  639.     The  rule  also  prevails  not 
[  106c.  ]    only  when  goods  are  sent  from  one  part  of  England  to  another, 
but  also  to  the  case  of  goods  sent  from  England  to  a  foreign 
country  ;  for,  whether  the  goods  are  delivered  on  board  a  vessel 
abroad,  to  the  order  of  a  person  resident  in  this  country.    God- 
frey V.  Furze,  3  Pere  Wms.  186, ;  or  sent  from  hence  Vo  the 
order  of  persons  resident  abroad.  Brown  v.  Hodgson,  2  Camp. 
36.,  the  property  equally  vests  in  the  consignee.     There  is  also 
no  distinction  between  the  cases  where  the  carrier  is  named  by 
the  consignee,  and  where  he  is  not  named ;  in  both  cases  the 
property  vests  in  him  upon  the  delivery.     In  Vale  v.  Bayle, 
Cowp.  296,  the  seller  had  been  in  the  habit  of  sending  goods  to 
the  buyer  by  water,  but  in  the  pursuance  of  a  letter,  desiring 
them  to  be  sent  by  a  particular  carrier  by  land,  he  sent  them 
according  to  his  directions,  and  the  delivery  was  holden  to  vest 
the  property  in  the  buyer.    See  Dawes  v.  Peck,  8  T.  R.  330. 
So,  in  the  case  of  Dutton  v.  Solomonson,  3  Bos,  &  Pul.  582., 
upon  an  objection  that  the  property  did  not  vest  in  the  vendee 
by  a  delivery  to  a  carrier  not  named  by  him,  Lord  Alvanley, 
C.  J.  observed,  "  that  it  appeared  to  him  to  be  a  proposition  as 
"  well  settled  as  any  in  the  law,  that  if  a  tradesman  order  goods 
'•  to  be  sent  by  a  carrier,  though  he  does  not   name  any  parti- 
"  cular  carrier,  the  moment  the  goods  are  delivered  to  the  car- 
"  rier,   it  operates   as  a   delivery  to  the  purchaser  ;  the  whole 
"  property  immediately  vests  in  him  ;  he  alone  can  bring  an 
"  action  for  any  injury  done  to  the  goods ;  and  if  any  accident 
"  happen  to  the  goods,  it  is  at  his  risk."    So,  in  the  case  of  God- 
frey v.  Furze,  3  P.  Will.  185.,  it  was  said  by  counsel  in  argu- 
ment, and  assented  to  by  Lord  Chancellor  King,  that  if  a  trades- 
man  in  London  send  goods   by  order  to   a  tradesman  in  the 
country,  by  a  carrier  not  appointed  by  the  country  trader,  if  the 
carrier  embezzles  the  goods,  the  trader  in  the  country  must  stand 
to  the  loss.     In  the  same   manner,  if  goods  are  delivered  to  a 
carrier,   or  hoyman,   to  be  delivered  to  A.,  and  the  goods  are 
lost,  A.  can  only  bring  the  action,  which  shows  the  property  to 
be  in  him.  Per  Lord  Hardwick,  in  Snee  v.  Prescott,  1  Atk.  248. 
So,  where  goods  were  sent  from  JManchester  to  London  by  a 


THE   LAW  Of  BAILMENTS.  106c. 

carrier  not  appointed  by  tlie  purcli  iser,  but  by  (lie  usual  con- 

veyancoj  the  delivery  to  the  carrier   was  decided   to  vest  the 

properly  in  the  buyer,  and  from  that  instant  the  goods  were  at    [  106d.  ] 

his  risk.  Button  v.  Solomonson,  3  Bos.  and  Pul.  582.     In  these 

c.tses,  however,  the  seller  may  retain  a  controul  over  the  goods    ... 

by  qualifying  the  deliver}',  as  where  goods  delivered  on  board  a 

vesst-'l  are  expressed  in  the  receipt  given  to  the  lighterman,  to 

be  for  and  on  account  of  the  shipper;  this  will  give  the  holder 

of  the  receipt  a  controul  over  tlie  goods  until  exchanged  for  the 

bill  of  lading    Craven  v.  Ryder,  6  Taun   435.     And  the  master 

of  the  vessel,  upon  tender  of  such  a  receipt  by  a  lighterman,  is 

bound  to  sign  it,   and  his   refusal  to  do  so  will  not  impair  the 

right  of  the  seller.    Ruck  v.  Hatfiv'ld,   5  Barn,  and  Aid.  632. 

See  Goodh  irt  v.  Lowe,  2  Jac.  and  Walk.  349. 

A  delivery  of  goods  to  a  wharfinger  to  be  forwarded  to  the 
buyer,  according  to  a  previous  course  of  dealing  between  the 
parties,  does  not  constitute  an  acceptance  within  the  statute  of 
frauds.  29  Cha.  2.  c.  3.  s.  17.  In  the  case  of  a  delivery  to  aa 
agent,  who  is  merely  authorized  to  receive  the  goods,  and  not 
to  judge  of  their  quantity  and  quality,  so  as  to  render  the  con- 
tract conclusive,  the  delivery  will  not  satisfy  the  terms  of  the 
statute  ;  for  there  can  be  no  actual  acceptance  of  the  goods,  so 
long  as  the  buyer  continues  to  have  a  right  to  object  to  them 
upon  either  of  those  points.  Hanson  v.  Armitage,  5  Barn,  and 
Aid.  557.     Vide  Astey  v.  Emery,  4  M.  and  S.  262. 

The  vesting  of  the  property  in  a  buyer,  upon  a  delivery  of  stoppage  in 
goods  to  a  carrier  on  his  account,  prevails  absolutely  in  all  cases  ;  O'^ns't"- 
but  there  is  one  instanre  in  which  a  vendor  is  allowed  to  re- 
sume the  possession  :  wIkmi  goods  have  been  sold,  and  not  paid 
for,  by  reason  of  credit  being  given  or  otherwise,  and  the  ven- 
dee to  whom  they  have  been  consigned,  becomes  insolvent,  the 
seller  may  seize  the  property  at  any  time  before  they  come  inio 
the  possession  of  the  buyer.  This  right,  usually  termed  a  stop- 
page in  transitu,  and  originally  adopted  in  the  courts  of  Chan- 
cery. Wiseman  v.  Vandeput,  2  Vern.  203.  Snee  v.  Prescot,! 
Atk.  245.  D'Aguila  v.  Lambert,  Ambler,  399.,  but  now  estab- 
lished and  favourably  received  in  courts  of  law,  5  East,  180,  is 
founded  upon  principles  of  equity  and  natural  justice,  in  order 


106d.  THE  LAW  OF  BAILMENTS, 

to  indemnify  llie  seller  from  the  loss  which  he  would  otherwise 
sustain  wliere  the  chance  of  payment  is  hopeless.  See  Lllis  v. 
Hunt,  3  T.  R.  469.  Lickbarrow  v.  Mason,  i2  T.  R.  75.  S.  C.  5  T. 
[  106e.  ]  R  683.  1  H  B.  357.  But  a  court  of  equity  will  not  exercise 
this  right  on  behalf  of  a  p'lrchaser ;  for  where  goods  had  be<n 
delivered  on  board  a  vessel  on  the  vendor's  account,  and  for 
which  payment  was  to  be  maile  at  the  time  of  the  shipment,  an 
injunction  was  refused,  upon  applicatinn  for  that  purpose,  to  re- 
strain the  sailing  of  the  vessel.  And  with  respect  to  the  ?top- 
page  of  goods  in  transitu,  it  appears,  ihat  a  court  of  equity  has 
no  jurisdiction  upon  the  subject.  Goodhart  v.  Lowe,  2  Jac,  and 
Walk.  349.  This  light  is  not  founded  upon  property,  but  ne- 
cessarily supposes  it  to  be  in  some  other  person,  and  not  in  him 
who  sets  it  up.  Per  BuUer,  J.  in  Lickbarrow  v.  Mason,  6  East, 
24.  n.  a.  Nor  does  it  proceed  upon  the  ground  of  rescinding 
the  '  ontract,  but  is  a  kind  of  equitable  lien,  adopted  by  the  law, 
for  the  purposes  of  su^'stantial  justice.  Per  Lord  Kenyon,  in 
Hodgson  V.  Loy,  7  T.  R.  445.  12  Ves.  382  The  law  upon 
this  subject  may  be  considered  with  reference  to — 1.  The  cases 
in  which,  and  the  persons  by  whom  the  right  may  be  exercised. 
2.  The  continuance  or  determination  of  the  transitus  :  and  3. 
The  means  by  which  the  right  of  the  consignor  m^iy  be  taken 
away. 

r      u  »  With  respect  to  the  cases  in  whi^^h  this  riciht  may  be  exercis- 

Xn  wnat  cases,  J  ^  j 

and  bv  whom  cd,  i'  may  be  observed,  that  it  is  not  an  unlimited  power  vested 
^  '^  '  in  the  consignor,  of  varying  the  consignment  at  his  pleasure,  in 
all  cases  whatever,  but  is  limited  to  the  sole  case  of  the  insol- 
vency of  the  consignee.  The  Constanti-',  6  Rob.  321 .  Per  Gibb'^, 
C  J.,  1  Marsh.  ■'527.  Upon  his  bankruptcy,  or  becoming  in- 
solvent, goods  consigned  to  him,  and  in  the  course  of  their 
journey,  may  be  stopped  in  transitu  ;  but  if  the  right  is  exercis- 
ed as  a  measure  of  precaution,  upon  a  supposition  of  insolvency, 
which  ultimately  turns  out  to  be  unfounded,  the  rights  of  the 
consignee  will  not  be  aflectel.      The  Constantia,  supra. 

■  Tlie  vfendor,  or  the  person  standing  in  this  relation  to  the 
bankrupt  or  insolvent  consignee,  is  the  proper  person  to  exer- 
cise this  right ;  for  if  he  is  merely  a  surety  for  the  price  of  the 
goods,  he  is  not  entitled  to  stop  them  in  transitu.     In  the  case 


THE  LAW  OF  BAILMENTS.  106e. 

*»f  Ferse  v.  Wray,  3  East,  93.,  the  consignee,  who  had  become 
bankrupt,  gave  orders  to  his  correspondent  at  Hamburgh,  to  buy 
for  him  a  quantity  of  goods,  which  he  accordingly  bought,  upon 
his  sole  credit,  of  persons  having  no  account  or  correspondence 
Vith  the  bankrupt,  and  shipped  them  on  board  a  general  ship,  [  106f.  ] 
directed  to  the  bankrupt,  and  the  bill  oi  lading  was  filled  up  to 
his  order:  the  correspondent  drew  bills  of  exchange  upon  the 
bankrupt  for  the  price  of  th  goods,  including  a  charge  for  the 
commission.  The  bills  were  not  paid,  and  the  consignee  hav- 
ing become  bankrupt  before  the  arrival  of  the  goods,  the  agent 
of  the  corresj)«indent  stopped  them  in  transitu  upon  their  arrival 
in  England.  In  an  action  of  trover  against  the  agent,  brought 
by  the  assignees  of  the  bankrupt,  to  recover  the  value  of  the 
goods,  Mr.  Justice  Lawrence  in  delivering  his  opinion,  observ- 
ed, "  that  it  had  been  contended  that  the  right  of  stopping  in 
transitu  does  not  attach  between  these  parties ;  that  the  bank- 
rupt must  be  considered  as  the  principal  for  whom  the  goods 
were  originally  purchased,  and  that  the  correspondent  was  no 
more  than  his  factor  or  agent,  purchasing  them  on  his  account ; 
and  that  the  right  of  stopj^ing  in  transitu  does,  in  point  of  law, 
apply  solely  to  the  case  of  vendor  and  vendee.  If  that  were  so, 
it  would  nearly  put  an  end  to  the  application  of  that  law  in  this 
country  ;  for  I  believe  it  happens,  for  the  most  part,  that  orders 
come  to  the  merchants  here  from  their  correspondents  abroad, 
to  purchase  and  ship  certain  merchandize  to  them  :  the  mer- 
chants here,  upon  the  authority  of  those  orders,  obtain  the  goods 
from  those  whom  they  dea!  with,  and  they  charge  a  commission 
to  their  correspondents  abroad,  upon  the  price  of  the  commodi- 
ty thus  obtained.  It  never  was  doubted  but  that  the  merchant 
here,  if  he  heard  of  the  failure  of  his  correspondent  abroad, 
might  stop  the  goods  in  transitu.  But,  at  any  rate,  this  is  a  case  • 
between  vendor  and  vanilee  ;  for  there  wis  no  privit}'  in  the 
original  owner  of  the  goods  and  the  bankrupt ;  but  the  proper- 
ty may  be  considered  as  having  been  first  purchased  by  a  cor- 
respondent, and  again  sold  to  the  bankrupt  at  the  first  price, 
with  the  addition  of  his  commission  upon  it.  He  then  became 
the  vendor  as  to  the  bankifipt,  and,  consequently,  had  a  right  to 
stop  the  goods  in  transitu  ;  and  so  it  is  admitted  that  he  might 


106f.  THE  LAW  OF  BAILMENTS. 

in  tlie  argument,  considering  the  correspondent  as  vendor,  un- 
less he  is  stopped  hy  the  circumstance  of  the  h-inkrupt  having 
accepted  bills  for  the  amount  ;  whicii  bills,  it  is  contended,  ni-iy 
be  proved  under  the  bankrupt's  commission,  and  are  equivalent 
[  106g\  ]  at  least  to  part  payment  of  the  goods  ;  but  it  was  decided  ia 
ilodgson  V.  Loy,  7  T.  R.  440.,  that  part  payment  for  the  goods 
does  not  conclude  the  right  to  stop  in  transitu  ;  it  only  dimi- 
nishes the  vendor's  lien  pro  tanto  on  the  goods  detained.  Then, 
having  lawfully  possessed  himself  of  them,  he  has  a  lien  on  them 
till  the  whole  price  is  paid,  which  cannot  therefore  be  satisfied 
by  showing  a  part  payment  only.  It  is  possible  that  part  pay- 
ment may  lie  obtained  by  proving  the  bills  under  the  bankrupt's 
commission  ;  but  if  ihe  loss  must  ftiU  on  one  side  or  the  other, 
the  maxim  applies,  Qui  prior  est  tempore iwtior  est  jure."  But 
a  correspondent  not  concerned  in  the  purchase  of  the  goods,  but 
who  merely  accepts  bills  on  behalf  of  his  principal,  and  receives 
a  commission  upon  the  amount,  does  not  stand  in  the  relation 
of  vendor  towards  the  principal,  but  is  a  mere  surety  for  the 
price  of  the  goods,  and  consequently  not  entitled  to  stop  them 
in  .transitu.   Siffkiu  and  another  v.  Wray,  6  East,  371- 

Ihc  circumstance  of  the  vendee  having  partly  paid  for  th© 
goods,  does  not  acstroy  the  vendor's  right  to  stop  them  in  tran- 
situ, upon   the  bankruptcy  of  the  vendee,  for  the  vendor  has  a 

•  right  to  retake  them  unless  the  whole  price  has  been  paid.  The 
operation  of  a  partial  payment  is  merely  to  diminish  the  lien 
pro  tanto.  Hodgson  v.  Loy,  7  T.  R.  446.  3  East,  102.  So, 
goods  consigned  to  a  factor,  who  accepts  bills  upon  the  faith  of 
the  consignment,  and  pays  part  of  the  freight  before  it  arrives, 
but  becomes  insolvent  before  the  bills  are  due,  may  be  stopped 
in  transitu  by  the  consignor,  before  they  get  into  the  actual  pos- 

•  session  of  the  factor.  Kinlock  v.  Craig,  3  T.  R.  119.  The  ven- 
dor's right,  also,  will  not  be  defeated  by  the  acts  of  persons  who 
derive  their  claims  from  the  consignee  ;  as  where  the  goods 
during  their  transit  are  attached  by  process  out  of  the  Mayor's 
Court,  at  the  suit  of  the  consignee's  creditor.  Smith  v  Goss,  1 
Camp;282.  ;  or  by  a  common  carrier  who  claims  to  retain  the 
goods  as  a  lien  for  his  general  balance  due  to  him  from  the  con- 


THE  LAW  OF  BAILMENTS.  ,  106g. 

no  personal  communication,  the  bailee  may  be  consi- 


signee.  Butler  v.  Wolcott,  2  N,  R.  64.     In  these  cases  the  right 
of  the  vendor  is  the  elder  and  preferable  lien. 

A  person  who  has  a  lien  upon  goods,  and  delivers  them  to  a 
carrier  on  the  account,  and  at  the  risk  of  the  principal,  cannot,  r  iQgu  1 
in  the  event  of  his  bankruptcy,  stop  the  goods  in  transitu,  for 
his  lien  ceases  with  the  possession,  and  the  delivery  to  the  cap- 
tain is  equivalent  to  a  delivery  to  the  principal.  Sweet  v.  Pym, 
1  East,  4. 

With  respect  to  the  continuance  or  deternaiHation  of  the  tran-  Continuation 
„•*.  I-      -n    1  1  1  .      ,         .  „  ,      oftransitus. 

Situs,  much  will  depend  upon  the  particular  circumstances  of  the 

case  ;  but  it  will  be  considered  to  be  continuing  until  the  goods 
come  to  the  actual  or  constructive  possession  of  the  consignee. 
An  actual  possession  of  the  goods,  by  a  corporal  seizure  of  them, 
was  formeily  holden  to  be  requisite  in  order  to  exercise  the 
right  of  stoppage  in  transitu.  In  the  case  of  Hunter  v.  Beal 
cited  3  T.  R.  466.  Lord  Mansfield  was  of  opinion  that  to  de- 
prive the  vendor  of  his  right,  there  must  be  an  absolute  and  ac- 
tual possession  by  the  consignee,  or,  as  his  Lordship  expresses 
it,  they  must  have  come  to  the  corporal  touch  of  the  vendee. 
The  expression,  however,  has  been  considered  as  too  compre- 
hensive, and  of  a  figurative  nature  rarely  if  ever  strictly  true.  Per 
Lord  Kenyon,  C.  J,  in  Wright  v.  Lawes,  4  Esp.  N.  P.  C.  82.  post 
106.  s.  Per  Lord  Ellenborough,  C.  J.  in  Dixon  v.  Baldwin,  5 
East,  184.  post  106.  1.  Ellis  v.  Hunt,  3  T.  R.  468.  And  lat- 
terly, when  greater  liberality  has  prevailed  in  the  construction 
of  this  doctrine,  and  a  disposition  has  been  evinced  of  conferring 
in  this  respect  a  more  enlarged  benefit  upon  vendors,  not  only 
has  the  obtaining  actual  possession  been  dispensed  with,  but  a 
constructive  one,  or  even  a  notice  given  to  the  carrier,  has  been 
deemed  a  sufficient  exercise  of  the  right.  Litt  v,  Cowley,  2 
Marsh.  459.  Ngrthey  v.  Field,  2  Esp.  N.  P,  C.  6l3.  vide  post 
106n.  In  the  case  of  goods' delivered  to  a  carrier,  whether  by 
land  or  water,  the  transitus  will  be  deemed  to  be  continuing 
during  the  course  of  conveyance  to  their  place  of  destination. 
See  Stokes  v.  La  Riviere  and  cases  infra.     And  this  principle 


106h.  THE  LAW  OF  BAILMENTS. 

dered  as  a  special  acceptor  :  this  was  adjudged  in  a  very 


will  not  be  affepted  by  a  transft^rrence  of  the  goods  to  different 
carriers,  for  the  purpose  of  forwarding  them  to  their  ultimate 
plfce  of  destination,  as  far  as  relates  to  the  seller  and  the  buyer 
or  his  agents,  tiodgson  v.  Loy,  7  T.  R.  440.  See  Dixon  v. 
Baldwin,  5  East,  185. 

A  delivery  on  board  a  chartered  ship  does  not  preclude  the 
ridit  of  the  consignor  to  stop  the  goods  in  transitu  while  on 
b(.ard    the   same  to  the  vendor,  in  the  event  of  his  instilvency 
before  actual  delivery,  any  more  than  if  they  had  been  deliver- 
ed on  board  a  general  ship  for  the  same  person      Bothlingk  v. 
r  106i.  1    Ingl'Sj  3  East,  380.     See  the  case   of  Inglis  v.  Usherwood,  1 
East,  515.  where  a  contrary  doctrine  was  holden      Bui  in  the 
case  of  a  vessel   chartered  bv  the  consignees   for  three  years, 
for  which  ih^^y  were  to  find  stock  and  provisims,  and  to  pay 
the  master,  and   b.ive  the  entire  disposition  and  complete  con- 
troul  over  the  ship,  during  the  period  for  which  it  was  engaged, 
•      a   delivery  on  board  the  vessel  was  holden  to  be  a  delivery  to 
the  buyers   Fowler,  and  another.  Assignee  of  Hunter  and  Co., 
V.  M'Taggart  and  Co.  cited  in  7  T.  R.  442.  1  East,  522.  and  3 
East,  388.     So,  where  the  plaintiff,  a  trader  of  London,  in  dan- 
ger of  insolvency,  went  to  Glasgow,  and  obtained  goods  from  a 
merchant  there,  and   paid  for  them   by  a  bill  upon  a  house  in 
London,  which  he  knew  to  be  insolvent  ;  the  goods  were  ship- 
ped at  Leith,  deliverable  at  the  Glasgow  wharf,   London,  and 
the  receipt  expressed  them  to  be  received  froifl.  the  plaintiff. 
The  plaintiff  having  become  bankrupt,  the  seller  gave  notice  to 
the  wharfinger  in  London,  at  whose  wharf  the  goods  had  arriv- 
ed, to  hold  them  on  his  account,  which  he  accordingly  did.     In 
an  action  of  trover  by  the  consignee  against  the  wharfinger  for 
the  value  of  the  goods,  the  court  were  of  opinion  that  there  was 
no  pretence  for  stopping  the  goods  in  transitu    as  the  receipt 
showed  that  the  delivery  to  the  plaintiff  was  complete.     Noble 
V.  Adams.  2  Marsh    366.     But  a  delivery  on  board  a  vessel  for 
and  on  account  of  the   sellers,  notwithstanding  the  captain  re- 
fused to  sign  a  receipt  to  that  effect,  and  afterwards  signed  bills 


THE  LAW  OF  BAILMENTS.  106i. 

modern  case  particularly  circumstanced,  in  which  the 


of  lading  to  the  order  of  the  vendees,  who  had  accepted  a  bill 
for  the  amount  of  the  goods,  wiil  not  destroy  the  vendor's  right 
to  stop  them  in  transitu.  In  such  a  case  it  is  the  duty  of  the 
defendant  to  sign  the  receipt,  and  not  to  sign  the  bills  of  lading 
until  the  receipt  is  handed  over  to  the  buyer,  and  by  him  to  the 
defendant.  Ruck  v.  Hatfield,  5  B,  and  A.  632.  But  had  the 
delivery  on  board  the  vessel  to  the  vendee  been  complete,  the 
transitus  would  have  been  at  an  end,  S.  C.  See  Goodhart  v. 
Lowe,  2  J.  and  W.  349-  and  post,  106w    n. 

In  the  case  of  Stokes  v.  La  Riviere,  cited  in  Bothlingk  v. 
Inglis,  3  East,  397  3  T.  R.  466.  5  East,  184.  Messrs.  Duhem 
and  Co.  of  Lisle,  had  purchased  a  quantity  of  goods  of  the 
plaintiff  and  other  persons,  which  were  delivered  to  the  defend- 
ants for  the  purpose  of  being  forwarded  to  Lisle  The  defend- 
ants accordingly  sent  them  to  their  correspondent  at  Ostend  tor 
that  purpose,  and  upon  receipt  of  the  goods,  he  wrote  to  Messrs. 
Duhem  and  Co.  apprizing  them  of  the  circumstance.  The  Du-  [  106k.  '] 
hems  having  become  bankrupt  while  the  goods  were  at  Ostend, 
the  defendants,  having  considerable  demands  upon  them,  coun- 
termanded the  orders  which  they  had  given  to  their  conespon- 
dent,  and  subsequently  obtained  possession  of  the  goods.  lu  an 
action  by  the  plaintifl'  to  recover  their  value,  it  was  contended 
on  the  part  of  the  defendants,  that  immediately  upon  the  delive- 
ry of  the  goods  by  the  plaintiff  to  them,  the  property  vested  in 
Messrs.  Duhem,  and  that  the  defendants  had  a  right  to  detain 
them.  But  Lord  Mansfield,  C.  J  said,  "  no  point  is  more  clear, 
"  than  that  if  goods  are  sold,  and  the  price  not  paid,  the  seller 
"  may  stop  them  in  transitu  ;  I  mean  in  every  sort  of  passage 
'•  to,  the  hands  of  the  buyers.  There  have  been  an  hundred 
"  cases  of  this  sort.  Ships  in  harbour,  carriers,  bills,  have  been 
**  stopped.  In  short,  where  the  goods  are  in  transitu,  the  seller 
"  liris  that  proprietory  lien.  The  goods  are  in  the  hands  of  the 
''  defendants  to  be  conveyed  :  the  owner  may  get  them  back 
"  again."  See  Dixon  v,  Baldwin,  5  lOast,  185.  So,  where  a 
bale   of  cloth,  which  was   seat  by  Messrs.  Steers  and  Co.  of 


106k.  THt:  LAW  OF  BAILMENTS. 

former  cases  in  Ventris,  AUei/ne,  and  Carthew,  are  ex- 


Wakefield,  to  the  defendant,  who  was  an  innkeeper,  directed  for 
the  bankrupts ;  to  whom  the  defendant's  book-keeper  gave  no- 
tice that  a  bale  was  arrived  for  them ;  and  Steers  and  Co.  at 
the  same  time  sent  them  a  bill  of  parcels  by  the  post,  the  re- 
ceipt  of  which  they  acknowledged,  and  wrote  word  that  they 
had  placed  the  amount  to  the  credit  of  Steers  and  ('o.  1  he 
bankrupts  g  ive  orders  for  the  defendant's  book-keeper  to  send 
the  bale  down  to  the  Galley  Quay,  in  order  to  ship  ifon  bo^rd- 
the  Union,  to  be  carried  to  Boston.  The  defendant  according- 
ly sent  the  bale  to  the  quay  ;  but  arriving  too  late  to  besh  pj^ed, 
it  was  sent  back  to  him.  Within  ten  days  afterwards  a  clerk  of 
the  bankrupts  went  to  the  defendant's  warehouse,  wh'^n  the  de- 
fendant asked  what  was  to  be  done  with  the  bale  in  question; 
and  was  ordered  to  keep  it  in  his  custody  till  another  ship  sailed, 
which  would  happen  in  a  few  days.  The  bankruptcy  happened 
soon  afterwards;  and  Messrs.  Steers  and  Co.  sent  wcrd  to  the 
defendant  not  to  let  the  bale  out  of  his  hands  :  accordingly 
when  the  bankrupts  applied  for  it,  he  refused  to  deliver  it  up. 
Lord  Mansfield  was  clearly  of  opinion  that,  thoui^h  the  gouds 
might  be  legally  delivered  to  the  vendees  for  nirtny  purposes, 
r  1061.  1  y^^  ^°''  ^^^'^  purpose  there  must  be  an  absolute  and  actual  pos- 
session by  the  bankrupts  ;  or  (as  his  Lordship  expressed  it)  ihey 
must  have  come  to  the  corporal  touch  of  the  vendees  ;  other- 
wise they  may  be  stopped  in  transitu,  a  delivery  to  a  third  per- 
son to  convey  to  them  is  not  sufficient.  Hunter  v.  Beal,  cited 
3  T.  R.  466.  The  authority  of  this  case  has,  however,  been 
much  impaired  by  subsequent  cases  See  Lilt  v.  Cowley,  2 
Marsh  457.  And  Lord  EUenborough,  C.  J.  in  commenting 
upon  it,  in  Dixon  v.  Baldwin,  5  East,  184.  observes — "  As  to 
"  Hunter  v.  Beal,  in  which  it  is  said  that  the  goods  must  come 
"  to  the  corporal  touch  of  the  vendees,  in  order  to  oust  the  right 
"  of  stopping  in  transitu,  it  is  a  figurative  expression,  rarely,  if 
"  ever,  strictly  true.  If  it  be  predicated  of  the  vendee's  own 
'•  actual  touch,  or  of  the  touch  of  any  other  pt-rson,  it  comes  in 
"  each  instance  to  a  question,  whether  the  party  to  whose  touch 


THE  LAW  OF  BAILMENTS.  106L 

amined  with  liberality  and  wisdom  ;  but,  in  all  of  them, 


"  it  actually  comes,  be  an  agent  so  far  representing  the  princi- 
*'  pal,  as  contradistinguished  from  a  delivery  to  a  person  virtu- 
**  ally  acting  as  a  carrier,  or  mean  of  conveyance  to  or  on  the 
'*  account  of  the  principal,  in  a  mere  course  of  transit  towards 
"  him.  I  cannot  but  consider  the  transit  as  having  been  once 
"  completely  at  an  end  in  the  direct  course  of  the  goods  to  tha 
"^vendee,  i.  e.  when  they  had  arrived  at  the  innkeeper's,  and 
"  were  afterwards,  under  the  immediate  order  of  the  vendee, 
"  thence  actually  launched  again  in  a  course  of  conveyance  from 
"  him  in  their  way  to  Boston  ;  being  in  a  new  direction  pre- 
"  scribed  and  communicated  by  himself.  And  if  the  transit  be 
"  once  at  an  end,  the  delivery  is  complete  ;  and  the  transitus  for 
''  this  purpose  cannot  commence  de  novo,  merely  because  the 
"  goods  are  again  sent  upon  their  travels  towards  a  new  and  ul- 
"  terior  destination." 

In  the  same  manner,  where  a  trader  at  North  Taunton,  in  De- 
vonshire, gave  orders  to  the  plaintiff  to  send  him  a  quantity  of 
goods  from  London,  not  directing  that  they  should  be  sent  by  any 
particular  vessel,  but  simply  that  they  should  be  sent  to  Exeter, 
to  be  forwarded  to  him  at  North  Taunton  ;  they  were  according- 
ly shipped,  arrived  at  Exeter,  and  were  put  into  the  hands  of  a 
wharfinger  to  be  forwarded  to  their  journey's  end.  In  the  books 
of  the  wharfinger  they  were  put  to  the  account  of  the  consignee, 
as  the  person  to  whom  they  were  directed,  and  he  was  considered 
as  the  wharfinger's  paymaster.  In  this  state  of  things  the  plaintiffs  [  106m.  ] 
received  a  letter  from  the  consignee,  informing  them  that  his  situ- 
ation was  such  that  he  could  not  receive  the  goods,  and  ofiered  to 
them  that  they  might  take  them  back,  if  they  thought  proper.  The 
plaintiffs  immediately,  on  the  receipt  ofthis  letter,  sent  to  the  whar- 
finger,and  forbade  him  to  deliverthemaccordingtothe  direction. 
The  wharfinger  promised  not  to  deliver  them  till  he  could  do  so 
with  safety,  notwithstanding  which  he  afterwards  delivered  them 
to  the  assignees  of  the  consignee.  Under  these  circumstances 
the  question  was,  whether  the  goods  in  the  hands  of  the  whar- 
finger were  in  such  a  situation  that  the  vendors  could  stop  them  ? 

23 


106iM.  THE  LAW  OF  BAILMENTS.       • 

too  great  stress  is  laid  on  the  reward,   and  too  little  on. 


The  court  decided  that  they  were  ;  for  although  there  was  no 
corporal  touch,  yet  that  took  place  which  was  equivalent  to  it. 
The  plaintiffs  gave  notice  to  the  wharfiugt^r,  and  demanded  the 
goods  as  their  property;  and  the  defendant  undertook  not  to 
deliver  them  till  he  was  certain  of  a  swf'  delivery.  Mi 'Is  and 
others  v.  Ball,  2  Bos.  and  Pull.  457  So  where  the  plaintiff 
received  an  order  for  a  quantity  of  goods  which  were  sent,  ac- 
cording to  the  buyer's  directions,  to  the  defendant,  who  was'a 
whcirfiiiger,for  tiie  purpose  of  being  forwarded  to  the  consignee  ; 
the  goods  in  the  defendant's  possession  were  considered  merely 
as  at  a  stage  upon  their  transit ;  and  that  the  consignor  was  ac- 
■  cordingly  entitled  to  stop  them  in  transitu.  Smith  v.  Goss,  1 
Camp.  282. 

In  the  same  manner,  where  A.  agreed  to  buy  some  articles  of 
plate  of  B.  who  was  to  get  A.'s  arms  enaraved  on  them ;  a  de- 
livery for  that  purpose  to  the  engraver  usually  employed  by  B. 
to  whom  the  plate  was  to  be  brought  back  by  the  directions  of 
both  parties,  and  the  engraving:  paid  for  by  him,  was  holden  not 
to  be  a  delivery  to  A.  so  as  to  defeat  B.'s  right  of  stepping  the 
goods  in  transitu,  upon  failure  to  pay  the  price  of  the  goods. 
Owenson  v.  Morse,  7  T.  R.  64,  So,  where  goods  have  been  sent 
by  orders  from  the  vendee  to  the  packer,  who  was  considered  as 
a  middle-man  between  the  vendor  and  vendee,  the  court  held, 
that  the  goods  might  be  stopped  in  transitu,  on  the  bankruptcy 
of  the  vendee  Hirst  v.  Ware;,  cited  3  T,  R.  467.  See  Dixon 
V.  Baldwin,  5  East,  IST).  and  ca«es  infra, 
f  106n.  ]  The  arrival  of  a  ship  at  her  port  of  destination,  and  the  ta- 
king actual  possession  of  her  by  the  consignee,  will  not  deprive 
the  vendor  of  his  right  to  take  possession  of  the  property, 
where  certain  acts  are  to  be  done  before  the  vessel  can  be  un- 
loaded. In  a  case  where  a  vessel,  upon  her  arrival  in  port, 
\vas  taken  possession  of  by  the  assignee  of  the  buj-er,  who  had 
become  bankrupt,  but  was  ordered  back  to  perform  quarantine, 
and  the  vendor  claimed  the  goods  before  the  quarantine  was 
completed,  his  resumption  of  the  property  was  holden  to  be  Ic- 
t;al.     The  taking  posso?iion,  in  order  to  devest  the  vendors  of 


THE  LAW  OF  B  VILMENTS.  lOCn. 

the  important   motives    of  pnhlic  utility,   which   alone 


their  right,  must  take  place  at  the  termination  of  the  voyage, 
whicli  is  not  complete,  until  the  vessel  has  performed  qurantine  ; 
and  the  consignee  cannot  anticipate  this  event  by  going  out  to 
meet  the  vessel.  Hoist  v.  Pownal,  1  Esp.  N.  P.  G.  240.  So, 
where  the  person  to  whom  the  goods  were  consigned,  became 
bankrupt  after  the  ship  arrived,  but  before  the  time  for  the  pay- 
ment of  the  duties  expired,  (he  goods,  during  this  period  being 
retained  on  board,  and  afterwards  removed  to  the  king's  cellar^ 
the  consignor,  before  the  sale  usually  made  m  order  to  defray  the 
duties,  applied  for  the  goods  without  success,  but  having  recei- 
ved the  proceeds  of  the  sale,  the  assignee  of  the  buyer  brought 
an  action  to  recover  the  amount,  contending,  that  the  property 
was  devested  out  of  the  consignor  by  the  goods  coming  to  the 
bankrupt.  But  Lord  Kenyon,  C.  J.  was  of  of  opinion,  that 
the  plaintiff  was  not  entitled  to  recover.  His  lordship  obser- 
ved, that  the  court  had  of  late  years  much  inclined  in  favour 
of  the  consignor's  power  to  stop, goods  in  transitu  ;  that  the  rule 
laid  down  by  Lord  Hardwick,  of  the  necessity  of  actual  posses- 
sion, in  order  to  secure  the  right,  was  much  relaxed,  and  that  he 
subscribed  to  the  rule,  that  a  claim  was  sufficient.  In  this  case, 
until  the  duties  were  paid,  the  goods  were  quasi  in  custodia  legis, 
and  the  claim  by  the  consignor's  agent,  before  the  sale,  was  a 
sufheient  stoppage  in  transitu.  Northey  v  Field,  2  Esp  6l3. 
So,  where  goods  were  delivered  to  a  carrier,  to  be  conveyed 
to  the  buyer,  and  the  seller,  while  they  were  in  transitu,  gave 
notice  not  to  deliver  them  ;  but,  by  the  mistake  of  the  carrier,  , 

they  were  delivered  to  the  buyer,  who  disponed  of  part  of  them, 
and  soon  after  became  bankrupt,  the  court  held,  that  the  delivery 
was  incomplete,  and  that  trover  might  be  maintained  against  the  ["  IOQq  "I 
assignees,  for  the  delivery  by  mistake  conveyed  no  property  to 
the  bankrupt ;  and  that  the  notice  devested  the  purchaser  of  the 
property, and  revested  it  in  the  seller.  Litt  v.  Cowley,  2  Marsh. 
457.     7  Taun.  l69. 

The  preceding  cases  show  the  particular  circumstances  wh'ch  DetormiDa- 
have  been  decided  to  establish  a  continuance  of  the  transitus ;  ivunsltus.^ 


106o.  THE  LAW  OF  BAILMENTS. 

distinguish    a   carrier   from    other    bailees  for    hire.ff) 

(/)  Burr.  2298.     Gibbon   and  Paynton.     See    1  Vent.  238.     All.  93. 
Carth.  435.  (40.) 

with  respect  to  its  determination,  it  may  be  observed,  that  an 
actual  or  constructive  delivery  of  the  goods,  on  their  arrival  at 
the    uhim  ite  place  of  their  destination,  will  have   that    effect. 
,  The    following   cases   will   show   the   grounds  upon    which  the 

courts  have  proceeded  in  ibis  branch  of  the  subject. 

A  delivery  of  part  of  the  goods  sold  by  an  entire  contract 
will  be  considered  to  be  a  delivery  of  the  whole,  there  appear- 
ing no  intention  either  previous  to,  or  at  the  time  of,  the  delive- 
ry, to  separate  part  of  the  cargo  from  the  rest.  Slubey  v. 
Heyward  and  others,  2  Hen.  Bl.  504.  12  Ves.  381.  As  when 
A.  at  a  foreign  port,  ships  goods  by  the  order  and  on  the  ac- 
count of  B.  to  be  paid  for  at  a  future  day,  and  bills  of  lading 
are  accordingly  signed  by  the  master  of  the  ship.  One  of  the 
liills  is  immediately  transmitted  to  B.  who,  before  the  arrival  of 
the  ship  at  the  place  of  destination,  sells  the  goods,  and  endorses 
the  bill  of  lading  to  C.  After  the  arrival  of  the  ship,  and  a 
delivery  of  part  of  the  goods  to  the  agent  of  C,  B.  becomes 
bankrupt  without  having  paid  A.  the  price  of  the  goods.  By 
this  delivery  the  transitus  is  at  an  end,  as  to  the  whole  of  the 
goods.  Skibey  v.  Heyward,  2  Hen.  Black.  5C4.  So,  where  a 
number  of  bales  of  bacon,  then  lying  at  a  wharf,  having  been 
sold  for  an  entire  s'lm,  to  be  paid  for  by  a  bill  at  two  months, 
an  order  was  given  to  the  \\  harfingor  to  deliver  them  to  the  ven- 
dee, who  went  to  the  wharf,  weighed  the  whole,  and  took  away 
several  bales,  and  then  became  bankrupt ;  whereupon  the  ven- 
dor within  ten  days  of  the  time  of  sale,- ordered  the  wharfinger 
not  to  deliver  the  remainder.  By  the  custom  of  trade,  the 
charges. of  warehousing  were  to  be  paid  by  the  vendor  14  hours 
after  the  sale.  The  court  held  that  the  vendee  had  taken  pos- 
session of  tho  whole,  and  that  the  vendor  had  no  right  to  stop 
[  lOCp.  ]  what  remained  in  the  hands  of  the  wharfinger.  Hammond  v. 
Anderson,  1  N.  R.  69-  See  Hanson  v.  Meyer,  6  East,  6l4. 
Kugg  v.  Minctt,  1 1  East,  2  lO.     Zagury  v.  Furnell,  2  Camp.  240. 


THE  LAW  OF  BAILMENTS.  106p, 

Though  no  substantial  difference  is  assignable  between  l^aw  concern- 
ing masters  of 
,^_ _______^_^ .   vessels. 

Hinde  v.  Wiiitehouse,  7   East,  558.     Stoveld  v.  Hughes,  14 
East,  308. 

An  actual  transfer  of  the  goods  is  not  necessary  to  constitute 
such  a  delivery  as  will  vest  in  the  buyer  an  uncontroulable  right 
to  the  property.  If  the  goods  at  the  time  of  the  sale  are  in  the 
vendor's  warehouse,  and  he  receives  warehouse  rent  for  them, 
this  will  be  a  complete  transfer  of  the  property,  and  extinguish 
the  right  of  stoppage  in  transitu.  The  payment  of  rent  for  a 
part  of  the  warehouse  so  far  appropriates  that  portion  to  the 
use  of  the  buyer  as  to  make  the  delivery  similar  to  the  one  at 
his  own  warehouse.  Hurry  v.  Mangles,  1  Camp.  N.  P.  C,  452. 
And  where  the  defendants  sold  a  quantity  of  timber  then  lying 
at  their  own  wharf  to  J.  S.  for  bills  payable  at  a  future  day, 
and  at  the  time  of  sale  J.  S.  put  his  mark  upon  the  timber,  a 
small  part  of  which  was  forwarded  by  the  defendants  to  one 
place,  and  part  to  another,  and  then  J.  S.  before  the  time  of 
payment  arrived,  sold  the  whole  to  the  plaintiffs.  They  notified 
tjie  sale  to  the  defendants,  wh©  answered  that  it  was  very  well, 
and  afterwards,  in  their  presence,  the  plaintiffs  put  their  mark 
upon  the  whole  of  the  timber  lying  at  the  defendant's  wharf. 
The  defendants'  assent  to  the  sale,  and  the  marking  of  the  tim- 
ber by  the  plaintiffs,  were  holden  to  constitute  an  executed  de- 
livery to  the  plaintiffs,  and  consequent  termination  of  the  transi- 
tus,  which  deprived  the  defendant  of  all  right  to  stop  the  goods 
in  transitu.  Stoveld  v.  Hughes,  14  East,  308.  So,  where  the 
purchaser  of  goods  has  lodged  an  order  to  deliver  them  with  the 
wharfinger  in  whose  warehouse  they  lie,  and  the  latter  has  trans- 
ferred them  in  his  books  into  the  name  of  the  purchaser,  the  ven- 
dor's right  to  stop  them  in  transitu  is  gone,  and  the  wharfinger  is 
bound  to  hold  them  as  the  agent  of  the  purchaser.  From  the 
moment  of  the  transfer  there  is  an  executed  delivery  of  the 
goods  as  much  as  if  they  had  been  delivered  into  the  vendee's 
hands.  Harman  v.  Anderson,  2  Camp.  243.  And  the  same 
effect  is  produced  by  the  delivery  note  being  lodged  with  the 
wharfinger  without  a  transfer  in  his  books.     S.  C,  and  see  S,  P«    [  106q.  J 


106q.  THE  LAW  OF  BAILMENTS. 

carriage  by  land  and  carriage  by  water ^{^)  or,  in  other 


Per  Gibbs  C.  J.  in  Withers  v.  Lyss,  4  Camp.  240.  So,  where 
goods  are  entered  in  the  books  of  the  West  India  dock  compa- 
ny, in  the  name  of  A.,  wh©  receives  the  usual  checque  for  them, 
which  having  sold  the  goods  to  B  ,  he  endorses  and  delivers  to 
him  :  B  sells  the  goods  and  delivers  the  checque  to  C.  on 
credit.  On  C.'s  insolvency,  A.  cannot  lawfully  take  possession 
of  the  goods,  although  they  have  continued  to  stand  in  his  name, 
and  the  checque  has  not  been  lodged  with  the  dock  company. 
Spear  v,  Tr.ivers,  4  Camp   2b\. 

But  when  something  remains  to  be  previously  done  before  the 
delivery  can  take  place,  the  delivery  of  the  order  to  the  ware- 
house-man will  not  have  that  effect.  A  particular  parcel  of 
goods  in  the  possession  of  a  warehouseman,  is  sold  at  so  much 
the  cwt.,  the  weight  of  the  whole  being  uncertain,  to  be  paid  by 
a  bill  of  exchange.  The  vendor  gives  the  purchaser  an  order 
to  weigh  and  deliver  the  goods,  which  is  lodged  with  the  ware- 
houseman :  but  before  the  goods  are  weighed  the  purchaser  be- 
comes insolvent.  The  vendor  has  a  right  to  stop  them  in  tran- 
situ. Withers  v.  Lyss,  4  Camp.  237-  The  necessity  for  the 
performance  of  some  previous  act,  as  the  weighing  in  this  in- 
stance, has  in  several  cases  been  considered  sufficient  to  coun- 
tervail the  effect  of  the  delivery  of  an  order  to  a  warehouseman, 
and  an  entry  in  his  books,  and  to  entitle  the  seller,  upon  the 
insolvency  of  the  vendee,  to  countermand  the  delivery.  Busk 
v.  Davis,  2  Maul,  and  Selw.  397-  Shepley  v.  Davis,  1  Marsh. 
252. 

The  termination  of  the  transitus  will  be  considered  to  be  com- 
plete upon  the  arrival  of  the  goods  at  the  place  of  their  ultimate 
destination  as  between  the  buyer  and  the  seller,  and  although 
they  have  not  arrived  at  the  residence  of  th';  consignee,  yet  in 
certain  cases'where  he  has  taken  possession  of  them,  and  exer- 
cised acts  of  ownership,  it  will  be  sufficient. 

In  the  cases  of  Ellis  v.  Hunt,  3  T.  R.  464.  the  consignee  had 
ordered  a  quantity  of  files  of  the  plaintiffs,  who  were  manufac- 
turers, at  Sheffield,  which  were  packed  in  a  cask  and  sent  di- 


THE  LAW  OF  BAILMENTS.  106q. 

words,  between  a  waggon  and  a  barge,  yet  it  soon  be- 


reeled  to  the  consignee.  The  plaintiffs  drew  a  bill  on  the  con- 
signee for  the  value  of  the  goods,  which  was  never  paid.  Im- 
mediately upon  the  arrival  of  the  goods  they  were  attached  at  r  IQGr.  1 
the  suit  of  certain  creditors  of  the  consignee,  by  process  of  fo- 
reign attachment  out  of  the  Mayor's  Court  of  London,  and  the 
cask  remained  at  the  inn,  charged  with  such  attachment,  so  far 
as  ihe  same  could  charge  it.  Before,  however,  the  goods  arriv- 
ed, the  consignee  became  bankrupt,  and  the  provisional  assignee 
demanded  possession  of  the  goods  from  the  carrier,  and  put  his 
mark  upon  the  cask,  but  did  not  takd  them  away.  The  con- 
signors hearing  of  the  bankruptcy  of  the  consignee,  afterwards 
demanded  the  cask  of  the  carrier,  and  upon  his  delivering  them 
up  to  the  assignees,  the  attachment  being  withdrawn,  they 
brought  an  action  of  trover  against  him  to  recover  the  value  of 
the  files.  The  court,  however,  decided  that  the  goods  were  not 
in  transitu  at  the  time  the  plaintiffs  wrote  to  countermand  the 
delivery  of  them,  before  that  the  assignee  had  put  his  mark 
upon  the  cask,  which  was  considered  as  taking  actual  possession. 
When  the  goods  were  marked,  they  were  delivered  to  the  con- 
signee as  far  as  the  circumstances  of  the  case  would  permit  ; 
they  could  not  then  take  them  away,  because  they  were  at  that 
time  under  an  attachment.  After  the  mark  was  put  on  them, 
they  were  no  longer  in  transitu  ;  and  consequently  the  plain- 
tiffs' right  to  seize  them  was  devested.  So,  where  a  quantity  of 
goods  were  ordered  of  the  defendants  at  Manchester,  to  be  for- 
warded to  the  bankrupt's  agent  at  Hull  for  the  purpose  of  being 
shipped  to  the  correspondents  of  the  bankrupt  at  Hamburg. 
When  the  goods  arrived  at  Hull,  they  were  absolutely  at  the  bank- 
rupt's disposal,  and  the  agent  received  orders  from  him  as  to 
their  their  ulterior  destination.  Under  these  circumstances  the 
transitus  was  holden  to  be  complete  upon  the  arrival  of  the 
goods  at  the  agent's  at  Hull,  since  that  was  their  ultimate  place 
of  destination,  as  between  the  bankrupt  and  the  defendants;  for, 
until  the  agent  received  directions  from  the  bankrupt,  he  did  not 
know  where  to  send  the  goods.     Dixon  v,  Baldwen,  5  East^ 


106r.  THE  LAW  OF  BAILMENTS. 

came  necessary  for  the  courts  to  declare,  as  they  did  in 


175.  So,  where  the  plaintiff,  who  was  a  manufacturer  at  Nor- 
wich, agreed  with  one  Shevill  for  the  purchase  of  several  pipes 
of  wine;  Shevill  wrote  to  Farquharson,  his  correspondent  in 
London,  to  execute  the  order,  who  bought  the  wine  of  Bamford 
and  Co.'  and  consigned  it  to  the  plaintiff  by  a  vessel  employed 
f  106s.  1  in  the  course  of  trade  between  Yarmouth  and  London.  When 
the  goods  arrived  at  Yarmouth,  the  plaintift''s  agent  took  posses- 
sion of  them,  but  not  having  room  in  his  own  celler,  they  were 
removed  into  the  defendant's,  who  was  paid  warehouse  room  by 
the  plaintiff.  Two  days  afterwards  the  plaintiff  came  to  Yar- 
mouth, tasted  the  wines,  and  took  samples  of  ihem,  but  Bamford 
and  Co.  discovering  Farquharson  to  be  a  swindler,  and  a  man 
of  no  property,  they  stooped  the  goods,  and  obtained  possessiott 
of  them  by  giving  the  defendant  an  indemnity.  On  the  part  of 
the  defendants  it  was  contended,  that  the  transitus  must  be 
deemed  to  be  continuing  until  the  goods  reached  the  plaintiff's 
residence  at  Norwich,  and  was  not  complete  by  the  delivery  at 
Yarmouth.  Lord  Kenyon,  C.  J.,  however,  was  of  opinion  that 
there  was  no  ground  for  considering  the  goods  in  transitu,  and 
that  the  delivery  to  the  plaintiff's  agent  at  Yarmouth,  according 
to  the  bill  of  lading,  was  a  sufficient  delivery  to  support  an  ac- 
tion against  the  plaintiff  for  goods  sold  and  delivered.  His 
Lordship  observed,  ''  I  once  said,  that,  to  confer  a  property  on 
''  the  consignee,  a  corporal  touch  was  necessary.  I  wish  the 
"  expression  had  never  been  used,  as  it  says  too  much  ;  but  here, 
"  if  a  corporal  touch  was  necessary  to  confer  a  property  on  the 
"  consignee,  it  had  taken  place  ;  but  all  that  is  necessary  is,  that 
"  the  consignee  exercise  some  act  of  ownership  on  the  property 
"  consigned  to  him  ;  and  he  has  done  so  here:  he  has  paid  for 
^^  the  warehouse  room  ;  he  has  tasted  and  taken  sample  of  the 
"  wines."  Wright  v.  Lawes,  4  Esp.  82.  See  Mills  v.  Ball,  2 
Bos.  and  P.  457.  ante  lOG  1.  n. 

A  delivery  to  a  packer  or  wharfinger  for  the  purpose  of  for- 
warding the  goods  to  the  consignee  in  cases  where  he  may  be 
considered  as  a  middle  man,  will  not  deprive  the  coHsignor  of 


THE  LAW  OF  BAILMENTS.  106s. 

the   reign  of  James  I.,   that  a  common  hoyman,  like  a 

the  right  of  stopping  the  goods  in  transitu,  but  where  the  con- 
signee has  no  warehouse  of  his  own,  and  uses  the  warehouse  of 
tlie  packer  or  wharfinger  for  that  purpose^  the  transitus  will  be 
considered  to*  be  determined  upon  the  arrival  of  the  goods  at 
such  warehouse. 

In  the  case  of  Leeds  and  another  v.  Wright,  3  Bos.  and  Pul. 
320.,  it  appeared  (hat  the  goods  in  question  were  purchased  of 
the  plaintiffs  at  Manchester,  by  one  Moissbron  (who  was  the  • 
general  agent  in  London  of  the  house  of  Le  Cxrand  and  Co.  of 
Paris)  in  the  name  of  that  house;  that  by  Moisseron's  directions  r  JOfit. 
they  were*  sent  for  him  to  the  house  of  the  defendant  in  Lon- 
don, who  was  a  packer,  and  arrived  there  on  the  3d  of  Septem- 
ber ;  that  upon  their  arrival  there,  Moisseron  came  to  the  de- 
fendant's house,  and  had  some  of  the  goods  unpacked  and  sent 
away,  and  the  remainder  repacked  ;  that  on  the  7th  of  Septem- 
ber, while  the  goods  so  repacked  remained  in  the  house  of  the 
defendant,  news  arrived  that  the  house  of  Le  Grand  and  Co.  at 
Paris,  had  failed  ;  upon  which  the  plaintiffs  tendered  to  the  de- 
fendant his  charges  upon  the  goods,  and  required  that  they 
slfould  be  delivered  up  to  them.  It  also  appeared  that  Moisse- 
ron had  a  general  power,  either  to  send  the  goods  to  Le  Grand 
and  Co.  at  Paris,  or  to  Holland,  Germany,  or  such  other  market 
as  he  should  think  most  beneficial.  The  delivery,  under  these 
circumstances,  not  on  the  account  of  Le  Grand  and  Co.,  but  on 
that  of  Moisseron,  was  holdon  to  be  a  delivery  to  the  latter,  and 
that  consequently  the  plaintiffs  had  no  right  to  stop  them  in 
transitu.  See  Dixon  v..Baldwen,  5  East,  186.  So,  where  the 
goods  in  question  had  been  ordered  by  the  bankrupt,  who  was  a 
merchant  in  London,  of  persons  resident  at  Manchester,  and 
were  sent  directed  to  him  at  the  inn  in  London.  Upon  the  ar- 
rival of  the  goods,  they  were  sent  to  the  defendant's  house,  who 
was  a  packer,  not  in  consequence  of  any  order  respecting  those 
particular  goods,  but  in  consequence  of  a  general  order  from  the 
bankrupt  to  send  all  goods  directed  ♦o  him  to  the  defendant's  ' 
house.     On  the  lltJi  of  March,  the  bankrupt,  who  lived  in  lodg- 


106t.  THt:  LAW  OF  BAiLiAJENTS. 

common  waggoner,  is  responsible  for  goods  committed 


iiigs,  and  had  no  warehouse  of  Kis  own,  absconded,  leaving  no 
cleik  to  accept  goods  or  orders  for  hun.  Ou  the  arrival  of  the 
goods  at  the  defendant's  iiouse,  they  were  booked  for  the  ac- 
count of  the  bankrupt ;  and  the  defendant,  not  knowing  that  the 
bankrupt  had  then  absconded,  and  not  having  any  directions  re- 
specting tho,goods,  caused  them  to  be  unpicked^  with  a  view  to 
ascertain  of  what  they  consisted.  (;n  the  31st  of  March,  the 
•  consignor^  having  learned  the  situation  of  the  bankrupt's  affairs, 
chiimed  the  goods  from  the  defendant,  and  oi\the  day  after  they 
wore  demanded  by  the  assignees.  The  defendants,  being  in- 
demnified by  the  consignors,  refused  to  deliver  the  gtfods  to  the 
plaintiffs.  Lord  Alvanley,  C,  J.,  recognizing  the  opinion  of 
[  106v  ]  Chambre,  J.,  in  Richardson  v.  Goss,  3  Bos.  and  Pul,  127.,  that 
if  a  person  be  in  the  habit  of  using  the  warehouse  of  a  wharfin- 
ger as  his  own,  and  make  that  the  repository  of  his  goods,  ihe 
transitiis  will  be  at  an  end  when  the  goods  arrive  at  such*  ware- 
house, decided,  in  concurrence  with  the  other  judges,"  that  the 
plaintiffs  were  not  entitled  to  stop  the  go.ods  in  4;ransitu,  since, 
if  the  delivery  at  the  warehouse  of  the  packer  were  not  to  be 
considered  as  the  place  of  delivery  to  the  bankrupt,  there  couid 
be  no  delivery  at  all.  Scott  v.  Pettit,  3  Bos.  and  Pul.  469  See 
3  East,  iHj.  where  these  cases  are  recognized  by  Lord  Ellen- 
horough,  C.  J.,  delivering  the  judgment  of  the  court.  S5,  where 
a  trader  in  London  was  in  the  habit  of  purchasing  goods  at  Man- 
chester, ai]d  exporting  them  to  the  continent  soon  after  their  ar- 
rival in  London  ;  but  not  having  any  warehouse  of  his  own, 
they  usually  remained  at  the  waggon  .office  of  the  defendant, 
who  was  a  common  carrier,  until  they  were  taken  away  for  the 
purpose  of  being  shipped.  The  goods  in  question  were  con- 
signed from  Manchester  for  the  purpose  of  exportation,  and  upon 
their  arrival  at  the  defendant's  waggon  office,  the  consignee's 
clerk  called  and  gave  directions  respecting  them.  Afterwards, 
the  agent  of  the  consignor  gave  notice  to  the  defendant  not  to 
deliver  the  goods  to  the  assignee  of  the  consignee,  and  the  de- 
fendant subsequently  delivered  them  to  the  consignor's  agent. 


THE  LAW  OF  BAILIMENTS.  106v 

to  his  custody,  even  if  he   be   lo'ubed  of  theiii  ;(g)  but- 

(<)   Hob.  ca.  30.     2  Cro.  330.     Rich  and  Kneelaiid.     'The  first  case  of 
"  this  kind,"  saiu  Lord  Holt,  "  to  be  fouiul  in  our  booiis."     12  Mod.  iSU. 


Ill  an  action  by  the  assignee  of  the  consignee  for  the  value  of 
the  goods,  the  court,  relying  on  the  above  decisions  of  Leeds  v. 
VVr  ght,  and  Scott  v.  Pettit,  tlecided  tliat  the  transitus  was  at  an 
end  upon  the  an-ival  of  the  goods  at  the  defendant's  waggon  of- 
fice. Rowev.  Pickford;  8  Taunt.  S3.  See  Loeschman  v.  Wil- 
hams,  4  Camp.  ISl. 

1  he  right  of  stoppage  in  transitu  must  not  only  be  exercised  In  what  cases 

before  the  goods  come  to  the  possession  of  the  "consignee,  but  f'^  "^^^  '*  '"* 

'  i=        7  ken  away. 

before  the  rights  of  third  persons  have  intervened  by  a  bona 
fide  endorsement  of  ihe  bill  of  lading.  Where  the  goods  are 
deliverable  to  the  order  of  the  consignee,  an  endorsement  of  the 
bill  of  lading  for  a  Viiluable  consideration,  bona  .id-;,  without 
notice  by  the  endorsee  of  such  circumstances,  as  would  render 
the  bill  of  lading  not  fairly  and  hone^ly  assignable,  will  deprive 
the  vendor  of  this  right.  Lickbarrow  v.  Mason,  2  T.  R.  (33.  1 
Hen  Bik  357.  See  the  learned  opinion  of  Mr.  Justice  Duller, 
delivered  in  the  House  of  Lords,  G  E:ist,  21.  n.  9  East,  5l6  [  1^7  } 
Haille  V.  Smith,  I  Bos.  and  Pul.  :j63.  Coxe  v.  Lumsden,  Peake 
IN.  P.  C.  189-  A  contrary  rule  would  enable  the  consignee  to 
commit  a  fraud  upon  an  innocent  third  person,  by  moans  of  the 
bill  of  lading,  which  makes  him  ostensible  owner  of  the  proper- 
ty. See  Solomons  v.*r^'issen,  2  T.  R.  680.  The  legal  title  of  the 
endorsee,  however,  may  be  impeached  on  the  ground  of  fiaud 
or  collusion.  Wright  v.  Campbell,  4  Burr.  204G.  1  Blk.  Hop.  . 
G28.  Solomons  v.  Nissen,  2  T.  R.  074.  And  where  the  bill  oi' 
lading  was  assigned  over  as  a  security  fi)r  acceptances  given  bv 
the  assignee,  not  amounting  to  the  value  of  the  goods,  and  after- 
wards by  an  agreement  between  him  and  the  corcsignee,  by 
which  it  appeared  that  the  consignor  had  not  been  paid  for  them 
atid  that  they  were  to  become  partners  in  tlie  goods,  the  endorse- 
ment under  such  circumstances  was  h(dden  not  sufficient  to  de- 
stroy the  vendor's  right.  Solomons  v.  Nissen,  2  T.  R,  G74. 
So,    an  endorsement   for   a    valuable   ronsideration   to    a  third 


107  THE  LAW  OF  BAILMENTS. 

the  reason   said   to  have  been  aiven   for  this  judgment, 


person,  with  notice  of  the  insolvency  of  tlie  consignee,  will 
not  deprive  the  consignor  of  the  right,  \iitue  v.  Jewell, 
4  Camp.  31.  But  the  mere  knowledg-e  that  the  goods 
have  not  been  paid  for  in  nn  ney,  but  by  bills  of  exchange 
accepted  by  the  consignee  payable  at  a  future  day,  not 
then  arrived,  is  not  of  itself  a  sufficient  ground  to  impeach 
the  endorsee's  title.  Cuminms  v.  Brown,  9  li^iist,  506.  See 
Cose  V.  Harden,  4  East,  211.  Ogle  v.  Atkinson,  1  Marsh.  328. 
As-  a  factor  cannot  pledge  the  goods  of  his  principal  by  a  de- 
livery of  the  goods  themselves,  so  neither  can  he  do  so  by  an 
endorsement  and  delivery  of  the  bill  of  lading,  and  conse- 
quently the  right  of  the  principal  to  stop  them  in  transitu  will 
not  be  aflbcted   by  such  a  transfer.     Aewsom   v.  Thornton,  G 

East,  17- 

A  receipt  for  the  delivery  of  goods  on   board   a  vessel,  ac_ 

knowledging  them  to  be  received  for  and  on  account  of  the  sel- 
lers, will  I'reserve  their  right  over  the  goods,  and  if  the  captain 
improperly  sign  a  bill  of  lading  to  the  buyer,  who  again  sells, 
and  receives  payment  for  thcni,  the  original  seller  will  be  en- 
titled to  stop  the  goods  in  trfuisitu  while  in  the  captain's  pos- 
session ;  fur,  retaining  the  lighterman's  receipt,  they  had  never 
parted  with  their  controul  over  the  property.  Craven  v.  Ry- 
der, 6  Taun.  434.  So,  where  the  consignor  shipped  a  quantity 
of  barley  on  his  own  account,  on  board  the«defcndant's  vessels, 
r  iA~  n  ^^'^  endorsed  the  bill  of  lading  to  his  factor  in  Loudon,  to  whom 
^  *  J    at  tiint  time  he  was   indebted  upon  the  balance  of  accounts  in- 

cluding, bills  which  were  then  running,  but  not  afterwards 
paid,  to  a  greater  amount  than  the  value  of  the  barley  ;  the 
fictor  aferwards  endorsed  the  bill  to  a  person  whom  he  was 
legally  indebted  to,  and  who  was  aware  of  the  factor's  insolven- 
cy at  the  lime  of  the  endorsement.  In  this  case,  the  right  of 
the  consignor  to  stop  the  goods  in  transitu,  was  h61den  not  to 
exist,  as  the  factor  was  to  be  considered  the  purchaser  of  the 
goods  for  a  valuable  consideration,  and  therefore  the  endorse- 
ment of  a  bill  of  ladJnc:  to  the  factor  under  the  above  circum- 


THE  LAW  OF  BAILMENTS.  107a. 

namely,  because  he  had  his  hire,   is  not  the  true  one ; 


stances,  vested  tlie  property  absolutely  in  him,  unaffected  by 
the  subsequent  non-payment  of  the  bills.  Virtue  v.  Jewell^ 
4  CHiop.  M. 

The  endorsement  of  the  bill  of  lading  is  not  absolutely  ne- 
cessary for  the  purpose  of  devesting  the  consignor  of  his  right ; 
particular  circumstances  may  exist  which  will  be  equivalent  to 
such  endorsement,  and  destroy  the  right  of  stoppage  in  transitu. 

A  merchant  in  Ireland,  having  shipped  for  London  a  quanti- 
ty of  provisions,  on  board  the  defendant's  vessel,  sent  the  bill  of 
lading  to  his  factor  at  that  place,  not  endorsed,  but  with  their 
names  written  on  the  back.  The  factors  having  effected  an  in- 
surance according  to  their  instructions,  wrote  to  their  principal 
for  an  endorsement  of  the  bill  of  lading,  who  replied  in  answer, 
that  if  the  bill  was  not  endorsed,  that  it  was  a  mistake,  and  that 
they  would  send  an  endorsement.  The  consignor  had  drawn 
bills  of  exchange  upon  the  factor,  which  upon  his  not  being  able 
to  pay,  were  taken  up  by  the  plaintiff,  for  the  honour  of  the  con- 
signor, who  was  largely  indebted  to. him  in  other  respects.  The 
l)!aintiff  having  knowledge  of  the  above  circumstances,  obtained 
from  the  consignor  an  endorsement  of  the  bill  of  lading,  and 
demanded  possession  of  the  goods  from  the  defendant.  But 
Lord  Kenyon  decided,  that  the  plaintiff  had  no  right  to  take  the 
goods  out  of  the  possession  of  the  persons  to  whom  the  factor 
had  transferred  them,  and  that  though  between  persons  ignorant 
of  the  transaction,  an  endorsement  is  the  only  transfer  ;  yet 
where  parties  know  the  whole  of  the  circumstances,  a  letter  of 
the  alrove  kind  is  a  sufficient  transfer  of  the  property.  Dick  v.  [  107b.  ] 
Lumsden,.Peake,  N.  P.  C.  189.  See  Nix  v.  Olive,  before  Lord 
EUenborough,  C.  J.  after  T.  T.  1805.  Abbott  on  Shipping, 
403.  4  Ed.  So  if  the  purchaser  of  goods,  to  be  paid  for  by  bill, 
after  giving  his  acceptance  durinf  the  time  of  credit,  and  while 
the  goods  are  in  transitu,  sells  them  to  a  third  person  for  a  valua- 
ble consideration,  without  transferring  any  bill  of  lading  to  him, 
the  right  of  the  original  vendor  to  stop  the  goods  in  transitu  is 
taken  away.     Davis  v.  Reynolds,  4  Camp.  267. 


107b.  THE  LAW  OF  BAILMENTS. 

since,  as  we  have  before  suggested,  the  recompense  could 


Remedies  The  ordinary  remedies  against  a  carrier,  for  the  loss  or  injury 

against  a  car-  of  goods,  are  an  action  of  assumpsit,  or  upon  the  case;  and 
where  the  carrier  has  been  guilty  of  a  misfeasance,\vhich  amounts 
to  a  conversion,  an  action  of  trover  is  maintainHble.  '1  he  two 
former  of  these  actions  are  of  similar  application,  and  by  varying 
the  mode  of  considering  the  injury,  either  as  the  non-perform- 
ance of  a  contract,  or  as  a  breach  of  duty,  are  in  general  applica- 
ble to  the  same  cause  of  action.  But. very  different  consequen- 
ces result  from  the  adoption  of  the  one  or  the  other,  both  in  the 
form  of  the  pleadings,  and  the  nature  of  the  evidence. 

Assumpsit.  The  action  of  assumpsit  is  an  established  mode  of  declaring, 

and  is  in  effect  the  same  as  a  declaration  npon  tiie  custom  of  the 
realm.  Dale  v.  Hall,  1  Wils.  281.  In  adopting  this  course,  and 
considering  the  transaction  as  constituting  a  contract  between 
the  parties,  the  general  principles  which  govern  that  form  of  ac- 
tion, become  applicable;  and  as  incident  thereto,  the  plaintiff  has 
the  advantage  of  joining  the  common  counts,  if  he  has  other  cau- 
ses of  action  to  which  they  are  applicable.  On  the  other  hand, 
the  plaintifTis  bound  to  sue  all  the  pa«rties,  who  are  jointly  liable, 
or  the  defendant  may  plead  in  abatement.  Govett  v.  Radnidge, 
3  East,  62.  1  Wms.'s  Saund.  291.  1.  b.  n.  4.  and  must  prove  at 
the  trial  a  joint  liability  in  all  the  persons  whom  he  has  sued,  or 
advantage  may  be  taken  of  that  omission  under  the  general  issue  ; 
for  the  contract  must  be  proved  as  stated,  and  the  proof  of  a  con- 
tract with  A.  and  B.  will  not  support  a  contract  stated  to  be  made 
with  A.  B.  and  C.  See  Wilsford  v.  Wood,  1  Esp.  N.  P.  C.  182. 
1  Wms.'s  Saund.  291.  b.  n.  4.  Max  v.  Roberts,  2  N.  R.  4.54.  In 
107c.  ]  this  form  the  plaintiff  will  also  be  precluded  from  joming  a  count 
in  trover.  Assumpsit  is  maintainable  when  the  cause  of  action 
consists  in  a  misfeasance,  as  where  the  carrier,  instead  of  convey- 
ing the  parcel  according  to  his  flngagempnt,  transfers  it  to  ano- 
ther carrier  for  that  purpose,  whereby  it  is  lost.  Sleat  v.  Fagg. 
5  B.  and  A.  349.     See  ante,  105  h.  n. 

Case.  Many  of  the  disadvantages  under  which  the  plaintiff  labours, 

by  bringing  an  action  of  assumpsit,  are  avoided  by  adopting  an 


THE  LAW  OF  BAILMENTS.  107c. 

only  make  him  liable  for  temerity  and  imprudence  ;  as  if 


action  upon  the  case,  and  some  advantages  are  also  obtained 
which  are  peculiar  to  an  action  arising  ex  delicto.  By  bringing 
an  action  upon  the  case,  a  count  in  trover  may  be  added,  where 
that  form  is  applicable,  vide  post,  107  f.  n.  The  defendant  will 
be  ousted  of  his  plea  in  abatement  on  the  ground  of  not  join- 
ing all  the  parties  ;  and  where  there  are  several  defendants,  the 
plaintiff'  will  be  entiiled  to  a  verdict,  if  some  are  found  guilty, 
although  others  are  acquitted. 

\V  ith  respect,  however,  to  an  action  upon  the  case,  when 
founded  substantially  upon  a  contract,  much  diversity  of  opinion 
has  prevailed  as  to  the  real  nature  of  the  action,  whether  it  is 
to  be  considered  as  an  action  ex  delicto,  and  to  be  governed  by 
the  rules  which  regulate  that  form  of  action,  or  quasi  ex  contrac- 
tu, and  subject  to  the  same  rules  as  an  action  of  assumpsit,  or 
other  action  founded  upon  a  contract.  See  Powell  v.  Layton, 
2  Bos.  and  Pul.  N.  R.  365.  Weal  v.  King,  12  East,  452.  and 
cases  infra. 

In  an  action  upon  the  case,  against  two  of  four  joint  owners 
of  a  vessel,  for  a  breach  of  duty,  in  the  carriage  of  goods,  which 
the  defendants  had  undertaken  to  carry  for  a  reasonable  freight 
to  be  therefore  paid,  the  court  were  of  opinion  that  this  was  not 
an  action  ex  delicto,  but  quasi  ex  contractu,  and  gave  judgment 
for  the  defendant,  because  all  the  owners  were  not  joined. 
Boson  V.  Scindford,  Skinn.  278.  3  Mod.  321.  Carth.  58.  3  Lev. 
258.  Salk.  440.  1  Show.  29-  101.  2  Show.  478.  S.  C.  The 
form  of  action  adopted  in  this  case,  whether  in  case  or  assump- 
sit, has  been  differently  represented  Upon  different  occasions,  see 
Buddie  V.  Wilson,  6  T.  R  369.  Govett  v.  Radnidge,  3  East, 
69.  and  its  authority  has  been  impeached  upon  the  ground  that 
the  judi^es  by  whom  it  was  determined,  went  upon  a  false  as- 
sumption ;  that  the  non-joinder  of  other  p;irties  who  were  lia- 
ble, could  not  be  pleaded  in  abatement.  Per  de  Grey,  C.  J.  in 
Abbott  v.  Smith,  2  Blac.  947.  Govett  v.  Radnidge,  infra,  but  [  lO^d.  ] 
is  supported  in  the  case  of  Powell  v.  LSyton,  2  Bos  and  Pul. 
N.  R.  372.     So,  in  the  last  mentioned  case  of  Powell  v.  Layton, 


107d.  THE  LAW  OF  BAILMENTS. 

a  bargemaster  were  rashly  to  shoot  a  bridge,  whtn  the 


which  was  an  action  againt  one  of  several  joint  owners  of 
a  ship,  for  a  breach  of  duty,  in  not  deliverins  goods  which  they 
had  accepted  to  carry  for  a  reward,  the  declaration  was  decided 
to  be  founded  on  contract,  and  that  the  defendant  might  plead 
in  abatement,  that  the  goods  were  delivered  to  him  and  his 
partners  jointly,  and  that  his  partners  were  not  sued.  And  in 
a  subsequent  case,  where  the  action  was  brought  against  nine  de- 
fendants, joint  ownews  of  the  vessel,  on  board  of  which  the 
goods  had  been  delivered,  consigned  to  the  plaintiff,  the  de- 
claration alleged  a  delivery  of  the  goods  to  be  carried  for 
freight,  and  a  breach  of  duty  in  making  a  deviation  during  the 
course  of  the  voyage,  by  which  the  plaintift'  lost  the  benefit  of 
a  policy  of  insurance.  It  appeared  in  evidence,  by  the  ship's 
register,  that  only  eight  of  the  defendants  were  owners,  and  that 
one  of  them  had  afterwards  married  the  ninth.  A  verdict 
having  been  found  for  the  plaintiff,  the  court  made  a  rule  abso- 
lute for  entering  a  non-suit,  upon  the  ground  that  the  action  was 
founded  in  contract,  and  that  the  plaintiff  was  not  entitled  to 
recover,  because  he  had  not  proved  all  the  defendants  to  be 
liable.  Max  v.  Roberts,  2  Bos,  and  Pul.  N  R.  454.  12  East, 
89.  S.  C.  But  in  an  action  against  three  defendants,  wherein 
the  plaintiff  declared  that  they  had  the  loading  of  a  certain 
hogshead  of  treacle,  for  a  reasonable  reward,  to  be  therefore 
paid  to  two  of  them,  and  a  certain  other  reward  to  the  other, 
and  that  the  defendants  so  negligently  conducted  themselves  that 
the  hogshead  was  lost,  a  verdict  having  been  found  for  two  of 
the  defendants,  and  against  the  other,  it  was  insi-ted  upon  mo- 
tion in  arrest  of  judgment,  that  the  cause  of  action  being  found- 
ed in  contract,  or  arising  at  least  quasi  ex  contractu,  the  finding 
of  not  guilty  as  to  two  of  the  defendants,  negatived  the  exist- 
ence of  a  joint  contract,  wJiich  must  be  proved,  if  the  action 
were  founded  in  contract,  and  that  the  plaintiff  was  not  entitled 
to  judgment  upon  the  record-  But  the  court,  upon  the  authority 
of  the  case  of  Dickon  v.  Clifton,  4  Wils.  319-  which  contained 
a  similar  count,  and  was  joined  with  a  count  in  trover,  over- 


THE  LAW  OF  BAILMENTS.  107e. 

heni  of  the  weather  is  tempestuoiis :    but  not  for  a  mere 


ruleJ  the  objection.  "■  What  inconvenience  is  there,"  observes 
Lord  Elleiiborough,  C.  J  in  delivering  the  judgment  of  the 
court,  "in  suffering  the  party  to  allege  his  gravamen,  if  he 
"  p!ease,  as  consisting  in  a  breach  of  duty  arising  out  of  an 
"  employment  for,  hire,  and  to  consider  that  breach  of  duty  as 
"'  tortious  negligence,  instead  of  considering  the  same  circura- 
"  stances  as  forming  a  breach  of  promise,  implied  from  the  same 
"  consideration  of  hire?  By  eiUowirig  it  to  be  c(»nsidered  in 
"  either  way,  according  as  the  neglect  of  duty  or  the  breach  of 
"  promise  is  relied  upon  as  the  injury,  a  multiplicity  of  actions 
"  is  avoided  ;  and  the  plaintiff,  according  as  the  convenience 
"  of  the  case  requires,  frames  his  principal  count  in  such  a 
"  manner,  as  either  to  join  a  count  in  trover  therewith,  if  he 
"  have  another  cause  of  action  for  the  consideration  of  tiie 
"  court,  other  th^n  the  action  of  assumpsit;  or  to  join  with  the 
"  assumpsit  the  common  counts,  if  he  have  another  cause  of 
"  action  to  which  they  are  applicable."  Govett  v.  Radnidgej 
3  East,  69.     See  Cowper  v.  South,  4  Taun.  802. 

And  in  a  late  case,  in  which  the  declaration  was  framed  upon 
a  neglect  of  duty,  and  not  for  the  breach  of  an  undertaking,  the 
action  was  brought  ag;)inst  ten  defendants,  who  were  the 
proprietors  of  a  stage  coach,  in  which  the  plaintiff  had  been  a 
passenger,  and  was  injured  by  the  upsetting  of  the  coach, 
through  the  negligence  of  the  defendant's  driver.  A  verdict 
having  been  found  against  eight  of  the  defendants,  and  in  favour 
of  the  other  two,  a  writ  of  Error  was  brought  into  the  Exche- 
quer Chamber.  On  beh;ilf  of  the  plaintiffs  in  error,  it  was  con- 
tended, upon  the  authority  of  the  cases  of  Powell  v.  Layton, 
2  N.  R.  365.  Weal  v.  King,  12  East,  452.  Green  v.  Greenbank, 
2  Marsh.  4S5.  Boson  v.  Sanford,  ante,  I07c.  and  Dale  v. 
Hall,  I  Wils.  281.  that  the  cause  of  action  being  founded  sub- 
stantially upon  a  contract,  was  subject  to  all  the  incidents  of  an 
action  upon  a  contract,  and  ihat,  consequently,  the  plaintiff  was 
bound  to  prove  a  joint  liability  in  all  the  defendants.  But  the 
court  considering   that  the  action  was   founded  upon  a  misfoa- 

25 


107c.  THE  LAW  OP  BAILMENTS. 

casualty,  as  if  a  hoy  in  a  good  condition,  shooting  a  bridge 


$ance,  and  the  declaration  framed  accordingly,  decided  that  the 
verdict  and  judgment  against  some  of  the  defendants  was  not 
erroneous,  and  affirmed  the  judgment  of  the  Court  of  King's 
Bench.  Brotherton  v.  Wood,  3  Bro.  and  B.  54.  [See  the  re- 
port of  this  case  in  Exchequer,  9  Price's  Rep.  408.]  See  3  Bro. 
and  Bing.  174. 

[In  an  action  of  trespass  on  the  case  against  a  common  carri- 
er, if  it  appear  by  a  bill  of  exceptions,  that  the  defendant  frau- 
dulently opened  certain  packages  and  casks  being  in  hi>  care, 
and  belonging  to  the  plaintiff,  took  therefrom  a  part  of  the 
contents,  and  converted  the  same  to  his  own  use,  but  not  that 
the  said  contents  were  feloniously  carried  away,  such  offence  is 
considered  as  amounting  to  a  trespass  only.  Cook  v.  Darby, 
4  Munf  Rep.  444.] 
r  107f  1  Where  the  action  is  framed  in  case  for  a  breach  of  duty,  and 
Trover.  not  in  terms  of  contract,  a  count  in  trover  may  be  joined.     In 

the  case  of  Dickon  v.  Clifton,  2  Wils.  319.  where  the  action  was 
framed  in  this  way,  for  negligence  and  misfeasance,  with  which 
a  count  in  trover  was  joined,  an  objection  was  made  upon  mo- 
tion in  arrest  of  judgment,  that  these  counts  could  not  be  join- 
ed, but  was  overruled  by  the  court.  Lord  Chief  Justice  Wil- 
mot  observed,  ''•  I  own,  that  in  many  books  it  is  reported,  that 
"  trover,  and  a  count  against  a  common  carrier,  cannot  be 
"  joined,  but  common  experience  and  practice  is  now  to  the 
"  contrary ;"  and  Lord  Ellenborough,  C.  J.  in  Govett  v.  Rad- 
nidge,  3  East,  69.  recognizing  this  observation,  added,  "  that 
"  when  the  counts  were  framed  in  this  manner,  it  was  then  the 
"  daily,  and  well  warranted  practice,  to  join  thera." 

To  sustain  this  count  a  conversion,  which  is  an  essential  ingre- 
dient to  the  maintenance  of  this  form  of  action,  must  be  pro- 
ved ;  it  may,  therefore,  be  useful  to  observe  the  nature  of  this 
act,  and  its  qualities.  A  conversion  is  a  misfeasance,  consisting 
in  the  commission  of  a  tortious  act,  and  may  be  defined  to  be 
the  wrongful  assumption  of  the  right  of  ownership  over  pro- 
perty, to  the  prejudice  of  the  true  owner.     Ross  v.  Johnson. 


THE  LAW  OF  BAILMENTS.  107f. 

at  a  proper  time,  were  driven  against  a  pier  by  a  sudden 


5  Burr.  2826.  M'Combie  v.  Davies,  6  East,  540.  Bromley 
V.  Coxwell,  2  Bds.  and  Pul.  439  Where  the  act  relied  upon 
decidedly  indicates  thi.«  assumption  of  ownership,  it  will  of  it- 
self amount  to  a  conversion.  Thus,  where  one  person  assumes 
to  himself  the  property  and  right  of  disposing  of  another  man's 
goods.  Per  Holt,  C.  J.  in  Baldwin  v.  Cole,  6  Mod.  212.  re* 
cognized  by  Lord  Ellenboroutih,  C.  J.  in  M'Combie  v.  Da- 
vies,  6  East,  540.  As  by  the  actual  destruction  of  property.  / 
Per  Abbott,  C.  J.  in  Keyworlh  v.  Hill,  3  Barn,  and  Aid.  6S7. 
Or  obtaining  possession  of  it  by  compulsion,  under  a  void  legal 
process.  Summersett  v.  Jarvis,  3  Bro.  and  B.  2.  So,  taking 
property  by  assignment  from  one  who  has  no  authority  to  trans- 
fer it,  as  when  a  factor  without  authority  pledges  goods  with 
which  he  is  entrusted  to  sell.  M'Combie  v,  Davies,  6  East, 
540.  or  goods  are  sold  by  a  person  having  no  authority  to  dis- 
pose of  them,  and  this  will  be  a  conversion,  both  in  the  seller  and 
the  buyer,  unless  he  has  purcliased  the  goods  in  market  overt 
bona  fide,  and  without  the  knowledge  of  imperfection  in  the 
seller's  title  Freeman  v.  East  India  Company,  1  Dowling  and  [  107g.  ] 
Ryl.  234.  To  apply  these  general  principles  to  our  present 
subject,  it  has  been  holden,  in  the  case  of  a  carrier,  that  if  he 
draw  out  part  of  the  vessel  and  fill  it  up  with  water,  it  is  a  con" 
version  of  all  the  liquor.  Richardson  v.  Atkinson,  1  Str.  576. 
So,  trover  will  lie  against  a  carrier  who  delivers  goods  by  mis- 
take to  a  wrong  person  ;  for  by  such  delivery  he  becomes  an  ac- 
tor, and  is  guilty  of  a  conversion,  so  as  to  support  this  action. 
Youl  V.  Harbottle,  Peake's  N.  P.  C.  49.  cited  by  Bailey,  J.  in 
Deveraux  v.  Barclay,  2  Barn,  and  Aid.  704.  See  Ross  v. 
Johnson,  5  Burr.  2827-  Townsend  v.  Inglis,  Holt,  N.  P.  C.  278. 
But  where  the  act  is  not  of  itself  of  so  decisive  a  character, 
other  circumstances  become  requisite  to  show  a  conversion,  and, 
for  this  purpose,  a  demand  and  refusal  are  usually  relied  upon 
to  make  the  act  complete.  The  mere  non-delivery  of  goods 
will  not  constitute  a  conversion  on  the  part  of  the  carrier,  but, 
if  he  has  them  in  his  possession,  and,  upon  demand,  refuse  to 


107^.  THE  LAW  OF  BAILMENTS. 

breeze,  and  overset  by  the  violence  of  the  shock  ;(/i)  nor, 

{hj    1  Slra    123.     Amies  and  Stevens. 

deliver  thfni,  this  wil!  be  evidwnce  of  a  conversion.  Salk  655. 
"ioul  V.  ILirbottle,  iVake,  N.  P.  C.  50.  1  C<imp.  410.  So, 
where  a  man,  en  i  usted  wiih  the  gooiis  (.f  ano.her,  puts  them 
iHto  the  hands  of  a  third  porson,  without  orders,  and  thereby 
brings  a  charge  upon  hisemployt-r,  it  is  a  conversion  ;  as,  where 
the  owner  of  goods  on  board  a  vessel  directed  the  captain  not 
to  lind  them  on  the  wharf  against  which  the  vessel  was  moored, 
which  he  promised  not  to  do,  but  afterwards  delivered  them  to 
the  wharfinger  for  the  owner's  use,  under  an  idea  that  the 
wharfinaer  had  a  lien  upon  them  for  the  whaifage  fees,  because 
the  vessel  was  unloaded  ;igainst  the  wharf;  it  was  held,  that  the 
owner,  on  demand  and  refusal,  m  ght  maintain  trover  against  the 
captain,  unless  he  could  establish  the  wharfinger's  right ;  for 
putting  the  goods  in  the  custody  of  the  wharfinger  brings  a 
charge  upon  the  plaintiff,  and  is  therefore  a  conversion  by  the 
defendant.  Syeds  v.  Hay,  4  T.  R.  250.  See  Smith  v.  Young, 
1   Camp    439. 

But  a  demand  and  refusal  is  merely  evidence  of  a  conversion, 
and  will  not  have  that  effect  where  it  appears  no  conversion  has 
taken  place,  as  in  the  case  of  a  carrier  or  wharfinger,  where  the 
goods  are  proved  to  have  been  lost  through  negligence,  or 
stolen  ;  and  theref  )re  trover  does  not  lie  in  such  case,  though 
the  owner  niav  have  an  action  upon  the  case.  Owen  v.  Lewvn, 
lU/n.  J  J  y^j^^  233.  Anon.  2  Salk.  655.  Ross  v.  Johnson,  5  Burr. 
2825.  Buller,  N.  P.  44,  45.  Youl  v.  Harbottle,  Peake's  N.  P. 
C.  119.  So,  if  A.  send  goods  by  B.  a  common  carrier,  to  be 
delivered  to  C. ;  proof  that  B.  asserted  he  had  delivered  the 
goods  to  C,  wherea<  in  truth  C.  had  never  leceived  them,  is  not 
sufficient  evidence  of  conversion  to  support  trover  against  B. 
Attersi  1  V.  Briant,  I  Camp.  409. 
p     .  .         The  person  invested   with  the  legal  right  to  property,  is  the 

action.  proper  party  to  sue  in  a  court  of  justice  for  an  injury  to  it ;  and 

since  a  delivery  to  a  carrier,  to  the  order  of  the  buyer,  vests  the 
property  in  him  immediately  and  absolutely,  he  is  the  person 


THK  LAW  OF  BAILMENTS.  lOTli. 

by  ])aiity  of  reason  for  any  other  force  too  great  to  be 


who  lias  sustaiiK'd  die  loss,  if  any,  by  the  negligence  of  the  car- 
rier, and  is  consequently  the  fit  person  to  call  for  compensation 
from  the  person  by  whom  he  has  been  injured.  Dawes  v.  Peck, 
8  T.  K.  332.  Brown  v.  Hodgson,  2  Camp.  36.  See  ante,  106  b. 
In  an  action  brought  by  the  consignor  in  the  case  of  goods 
delivered  on  board  a  vessel,  to  be  carried  from  London  to 
Tnningen,  which  were  expressed  in  the  bill  of  lading  to  be 
shipped  by  order  and  on  account  of  Hesse  &  Co.  of  Hamburgh  ; 
upon  an  objection  to  the  plaintiff's  right  to  sue,  Lord  EUenbo- 
rough,  C.  J.  observed,  "  The  goods  are  shippijd  by  order  and 
''  on  account  of  Hesse  &  Co.  I  can  recognise  no  property  but 
"  that  recognized  by  the  bill  of  lading.  This  action  cannot  be 
"  maintained.''  Brown  v.  Hodgson,  2  Camp.  36.  See  Sargent 
V.  Morris,  3  Barn,  and  Aid.  278.  Dawes  v.  Peck,  8  T.  R.  330. 
Joseph  and  others  v.  Knox,  3  Camp.  320.  Noble  v.  Adams,  2 
Marsh.  3G6.  7  Taun.  59.  ante,  p.  I06c.  An  action  in  the 
name  of  the  consignor  has  been  maintained  in  some  cases,  upon 
the  ground  that  he  was  liable  for  the  price  of  the  carriage. 
Davies  v.  James,  5  Burr.  2680.  Moore  v.  Wilson,  1  T.  R.  659- 
But  these  cases  proceeded  on  the  ground  of  special  agreements 
between  the  respective  consignors  and  consignees,  and  do  not 
affect  the  general  principle.  Dawes  v.  Peck,  8  T.  R.  330. 
King  V.  Meredith,  2  Camp.  N.  P.  C.  639. 

There  are  cases,  however,  in  which  the  consignee  may  main- 
tain an  action  agatnst  a  carrier  ;  as,  where  a  counterfeited  order 
in  the  name  of  a  third  person  is  fraudulently  given  to  a  trades-  r  -ia-^-  -j 
man,  who  in  consequence  delivers  the  goods  to  the  carrier,  di- 
rected to  the  supposed  consignee,  which  are  afterwards  lost  by 
the  carrier,  by  means  of  a  negligent  mis-delivery.  In  this  case 
the  consignee  may  sue  in  his  own  name,  since  the  delivery  of 
the  goods  to  the  carrier  created  no  change  of  property;  for 
there  was  no  sale  between  the  parties  which  could  have  trans- 
ferred it  to  the  consignee,  and  the  delivery  being  by  fraud, 
could  operate  no  such  effect.  Per  Richardson,  J.  in  Duff  v. 
Budd,  3  Bro.  and  Bing.  184.  vide  Berkett  v.  Willan,  2  Barn, 
and  Aid.  356. 


107i.  THE  LAW  OF  BAILMENTS. 

resisted  :f  i)  the  public  employment  of  the  hoyman,  aiK^that 

(i)  F'alm.  51'  W.  Jo.  150.  See  the  doctrine  of  inevitable  accident 
niMsi  leainedlv  discussed  in  Desid.  Heraldi  Aniinadv.  in  Salmasii  Observ. 
iu    !us  Att.  et  Rom,  cap.  xv. 


Whether  the  loss   or  damage  arises   from  the  negligence  of 
the   carrier,  or  of  his  servants,  the  action  should   be  brought 
against  the  carrier.     If  the  driver  of  a  stage-coach,  although  in 
fraud  of  his   master,  carry  goods  for  hire  on  his  own  account, 
and  ihit  fact   be  known  to  ths  person  who  employs  him,    the 
action  should  be  against  the  driver,  and  not  the  master ;  but  if 
the  driver  be  only  a  servant,  the  action  must  be  brought  against 
the  master,  and  him  only.      This  is  a  general  rnle,  wherever  the 
act  of  the  servant  can  be  considered  as  the  act  of  the  master. 
Williams  v.  Cranston,   2  St;irk.  N.    P.  C.    82.     See  Cavenagh 
v.  Such,  1  Price  R.  328.   Middleton  v.  Fowler,  Sulk.  282.  Bull. 
Nisi  Prius,  70  b.  Bridgeman's  ed. 
8,    1      ,.  In  a  declaration  against   a  common  carrier,    it  was  formerly 

usual  to  set  out  the  custom  of  the  realm,  I  Sid.  245.  Hearn's 
Plead.  76.  Vid.  Ent.  37,  38  ;  but,  as  this  custom  is  part  of  the 
common  law,  and  judicially  recognized  by  the  courts,  it  is  not 
only  unnecessary,  but  is  better  omitted,  because  it  tends  to  con- 
found the  distinction  between  special  customs,  which  ought  to  be 
pleaded,  and  the  general  custom  of  the  realm,  of  which  the 
courts  are  bound  to  take  notice  without  pleading.  Per  Denni- 
son,  J  in  Dale  v.  Hall,  1  Wils.  282.  Ca.  Temp.  Hard.  199- 
Hargrave's  Co.  Litt.  p.  89.  a.  n   7  Hob.  18. 

The  declaration  must  allege  a  duty  or  contract,  and  therefore 
a  count  in  an  action  upon  the  case  which  stated  a  shipment  by 
the  plaintiff  of  goods  on  board  a  vessel  of  which  the  defendants 
were  owners,  without  proceeding  to  state  that  the  goods  were 
delivered  or  received  by  the  defendants,  so  that  they  had  no  no- 
tice of  the  fact,  is  not  sufficient.  A  promise  must  be  alleged,  or 
T  10"^L-  "1  ''"'^^^  circumstances  and  facts  stated,  from  whence  a  promise 
could  he  implied  by  the  one  party  to  the  oiher,  or  duty  inferred 
between  them  in  respect  to  such  goods.  Max.  v.  Roberts,  12 
East,   89. 


THE  LAW  OF  BAILMENTS.  107k. 

distrust,  which  an  ancient  writer  justly  csdh  the  sineio  of 

In  the  statement  of  the  contract,  it  must  be  set  forth  so  as 
to  correspond  wiih  the  facts  proved  in  evidence,  and  any  ma- 
terial variance  will  be  fatal.  Roskell  v.  Waterhouse,  2  Stark, 
N.  P.  C.  461.  But  as  a  general  notice  does  not  constitute  a 
special  contract,  or  in  any  way  qualify  the  contract  itself, 
it  need  not  be  stated  upon  the  record  ;  a  declaration  in  the  usual 
form  will,  in  cases  of  this  description,  be  sufficient.  The  proper 
office  of  such  notice  is  to  limit  the  province  of  the  jury  in  the 
assessment  of  damages,  after  a  right  to  them  has  accrued  by  a 
breach  of  the  contract.  Clarke  v.  Gray,  6  East,  563.  Smith  v. 
Home,  8  Taun.  146. 

The  termini  of  the  journey  must  also  be  accurately  stated, 
for,  where  the  contract  was  represented  in  the  declaration  to  be 
for  the  conveyance  of  goods  from  VVhitechapel,  in  the  county  of 
Middlesex,  to  Thornden,  in  Essex  ;  when,  in  fact,  it  was  from 
Aldgate,  in  the  city  of  London,  to  th  u  place,  the  variance  was 
holden  to  be  fatal.  Tucker  v.  Cr^icklin,  2  Stark.  N.  P.  C.  385. 
See,  in.  2  Show.  129,  a  note  by  the  reporter  as  to  a  mis-state- 
ment of  the  terminus  ad  quern. 

Where  the  demand  consists  of  a  sum  certain,  or  capable  of  ?^^^™'''^**'' 

'  r  money  into 

being  ascertained  by  mere  computation,  without  leaving  any  sort  court, 
of  discretion  to  be  exercised  by  the  jury,  the  defendant  will  be 
permitted  to  pay  money  into  court.  Ilallot  v.  East  India  Com- 
pany, 2  Burr.  1120.  Tidd's  Pract.  5  Ed.  p.  620.  Archbold's 
K.  B.  Practice,  2  v.  181.  Hutton  v.  Bolton,  1  H,  Bl.  299.  n.  b. 
In  an  action  of  assumpsit  against  a  carrier  for  the  loss  of  a 
trunk  belonging  to  the  plaintiffs  of  the  vakie  of  50^.  the  defend- 
ant was  allowed  to  pay  201.  into  court,  upon  an  affidavit,  which 
stated,  that  he  had  published  an  advertisement  that  he  would 
not  be  responsible  for  any  parcel  committed  to  his  care  above 
the  value  of  20?.  unless  he  was  paid  in  proportion  to  the  risk, 
and  that  though'  the  goods  lost  in  the  preseut  case  exceeded 
that  value,  yet  he  was  not  informed  of  it,  nor  paid  any  thing 
extraordinary  for  the  carriage.  Mr.  Justice  Bullcr  observed, 
that  "  this  was  an  action  of  assumpsit;  and  the  goods  are  stated  r  ^r.^. 
'•  to  have  been  of  a  specific  value.     The  declaration  does  not  '   ^ 


1071.  THE  LAW  OF  BAILMENTS. 

wisdom^  are  the  real  grounds  of  the  law's  rigour  in  mak- 
ing such  a  person  responsible  for  a  loss  by  robbery. 


"  state  any  particular  damage  or  inconvenience  in  ronseqtience 
"  of,  anfl  independent  of  the  loss;  and  therefore  the  plaiatift" 
*'  cannot  rect>ver  beyond  the  value  of  the  goods  in  question  ;  for 
"  which  reason  the  declaration  does  not  differ  from  th"  cnmmon 
"  c.ise  of  goods  sold  and  delivered."  Hutton  v.  Bolton,  1 
Hen   Bl.  299   n,  b. 

But  in  assumpsit  to  recc  ver  the  loss  sustained  upon  goods  put 
on  board  of  the  defendant's  barge,  and  which  ha<l  been  spnied, 
in  con--equence  of  the  barge  being  sunk ;  the  defendant  was  not 
allowed  to  pay  the  invoice  price  into  court.  Fail  v.  Pickford,  2 
B.  and  P.  234. 

The  payment  of  money  into  court,  generally  on  the  whole 
declaration,  admits  the  contract  as  stated  in  each  count,  but  not 
the  amount  of  the  breach  there  stated.  iStoveld  v.  Brewin,  2  B. 
and  A.  Il6.  Dyer  v,  Ashton,  6  Barn,  and  Aid.  3.  Nor  will  it 
be  an  admission  of  other  parts  of  the  contract,  which  are  dis- 
tinct and  collateral,  respecting  the  liquidation  of  damages  after 
a  right  to  them  has  accrued  by  a  breach  of  the  contract.  Clarke 
V.  Gray,  6  East,  564. 

In  an  action  of  assumpsit  against  a  carrier  for  the  loss  of  a 
trunk  of  the  value  of  15^'  ,  where  the  declaration  stated  a  general 
undertaking  by  the  defendants  to  carry  goods  for  hire,  and  ihe 
defendant  paid  5/.  into  court,  the  defendant  was  not  all  .wed  to 
give  in  evidence  a  notice  "  that  he  would  not  be  responsible  for 
"  more  than  bl.  for  any  property  lost,  unless  the  same  was  book- 
"  ed  and  paid  for  according  to  the  value,"  on  the  ground  that 
the  notice  containing  the  restriction  was  a  limitation  of  the  con- 
tract, which  was  admitted  by  the  payment  of  money  into  court, 
and  reduced  the  question  to  the  quantum  of  damages  the  plain- 
tiff was  entitled  to  recover.  Yate  V.  VVillnn,  2  East,  l68.  But 
in  the  above  case  of  Clarke  v.  Gray,  the  opinion  of  the  court 
that  the  notice  operated  as  an  admission  of  the  contract  was  im* 
peached  by  the  court,  and  Lord  Ellenborough,  in  delivering 
judgment,  observed,  "  that  the  case  of  Yate  v.  WiUan  could  not 


THE  LAW  OF  BAILMENTS.  1071. 

AH  that  has  just  been  advanced  concerning  a  land- 


"  be  supported  to  its  full  extent ;  for  although  the  payment  of 
"  money  into  court  did  admit  the  contract  as  stated  in  the  de- 
"  claration,  it  did  not  admit  a  contract  incompatible  with  the 
"  restrictive  provision,  as  to  the  amount  of  damages  to  be  reco- 
"  vered  in  case  ot  loss." 

The  statute  of  limitations  may  be  pleaded  in  bar  to  an  action  Statute'of 
against  a  common  carrier  for  fraudulently  embezzling  goods  en-  """^^tions. 
trusted  to  his  care.  Cook.  v.  Darley,  4  Munf.  Rep.  444.  r  jQ^^^    -j 

In  an  action  against  a  carrier  for  the  loss  or  injury  of  goods,  Evidence  on 
the  plaintiff  must  prove  a  delivery  to  the  carrier,  or  to  his  ser-  p.^^^T^"^'^^ 
vant  or  agent,  so  as  to  charge  him  with  their  custody,  vide  ante, 
p.  103.  f.  n.  And  where  there  is  any  reason  to  apprehend  that 
that  fact  will  be  disputed,  he  should  tUso  be  prepared  to  prove 
that  the  goods  were  properly  packed  for  the  journey.  See 
Beck  V.  Evans,  l6  East,  245  But  the  plaintifl'  will  not  be  re- 
quired to  prove  a  property  in  the  goods,  for  if  a  carrier  receive 
goods  to  be  carried,  he  cannot  retain  them,  and  put  the  consign- 
or upon  proof  of  his  title  to  them.  Anon,  cited  and  sanctioned 
by  Lord  Kenyon,  C.  J.  in  Laclough  v.  Towle,  3  Esp.  N.  P.  C. 
HT).  The  material  averments  in  the  declaration,  and  also  the 
terms  of  the  contract,  must  be  proved  as  they  are  set  forth.  See 
Roskell  V.  Waterhouse,  2  Stark.  N.  P.  C.  4Gl. 

In  a  case  in  which  it  was  alleged,  that  in  consideration  that 
the  plaintiff,  at  the  instance  of  the  defendant,  had  caused  to  be 
shipped  on  board  his  vessel  a  quantity  of  wheat  to  be  delivered, 
for  a  reasonable  reward,  at  a  certain  place  by  a  particular  day, 
and  that  the  defendant  undertook  to  deliver  it  safely,  the 
plaintiff  proved  the  agreement  as  stated  ;  but  it  appeared  that 
the  agreement  was  made  before  all  the  wheat  was  delivered. 
The  court,  however,  decided  that  the  declaration  was  supported 
by  the  evidence.     Streeter  v.  Horlock,  1  Bing.  34.      ' 

A  party  who  seeks  to  deprive  the  carrier  of  a  genpral  notice, 
must  show  the  particular  circumstances  upon  which  he  relies  for 
that  purpose  ;  for  the  carrier  is  not  bound  to  prove  that  he 
used  reasonable  care.   Harris  v.  Pack  wood,  3  Taun.  .34.  But  in 

26 


107m.  THE  LAW  OF  BAILMENTS. 

carrier  may,  therefore,  be  applied  to  a  bargemaster  or 

assumpsit  in  the  usual  form,  evidence  of  gross  neglect  is  admissi- 
ble for  this  purpose,  although  the  declaration  contains  no  such 
averment,  because  tho  notice  not  constituting  a  special  contract, 
does  not  appear  on  the  record,  but  only  arises  in  defence  of 
the  carrier,  and  therefore  it  may  be  rebutted  by  proof  of  posi- 
tive negligence.     Smith  v.  Home,  8  Taun.  144. 

The  entry  in  the  office  in  Somerset  House  for  licensing  stage- 
r  107n.  1  coaches,  is  no  evidence  to  prove  that  persons  named  in  the  li- 
cense are  the  owners  of  the  coach.  To  render  such  evidence 
admissible  against  the  coach-master,  his  signature  to  the  entry, 
or  connection  with  it  in  some  way  or  other,  must  be  proved. 
Strother  v.  Willan,  2  Camp.  24. 
On  the  part  o''  A  carrier,  upon  proof  of  a  delivery  to  him,  will  be  required 
e  en  an  ,  jq  show  in  what  manner  he  has  acquitted  himself  of  his  engage- 
ment, for  it  is  not  necessary  for  the  pbiintiff  to  prove  negligence, 
for  it  is  said  "  every  thing  is  negligence  that  the  law  does  not 
excuse."  Evidence,  theiefore,  that  the  loss  is  not  attributable 
to  negligence,  on  the  carrier's  part,  is  inadmissible,  for  since  he 
is  responsible  in  all  cases,  except  injuries  resulting  from  the  utt 
of  God,  or  of  the  King's  enemies,  all  other  causes  amounting  to 
negligence  not  being  legal  excuses,  evidence  of  them  is  immate- 
rial, as  not  being  an  answer  to  the  undertaking.  Dale  v.  Hall, 
1  Wils.  281.  The  communication  of  a  notice  may  be  proved 
by  the  person  by  whom  it  was  made,  or  by  the  proof  of  those 
circumstances  from  whence  a  knowledge  of  its  contents  may  be 
inferred,  vide  ante,  p  104  h  and  see  also  p.  106  as  to  the  proof 
of  a  right  of  lien  for  a  general  balance.  A  general  notice  writ- 
ten upon  a  board  which  is  inlaid  in  a  wall,  may  be  proved  by 
an   examined    copy.     Cobden   v,  Bolton,   2  C;imp,    108.  n. 

[A  u-age  or  custom,  varying  the  liability  of  common  carriers  by 
water,  from  that  of  the  common  law,  may  be  proved.  Walker 
V.  Little,  8  Serg.  &  Raw.  533.  But  in  an  action  against  a  com- 
rfton  carrier  by  water,  to  recover  damages  for  the  loss  of  the 
plaintiff's  goods,where  the  defence  is,  that  carriers  by  water  are, 
by  the  custom  of  the  country,  answerable  for  such  losses  only 


THE  LAW  OF  B\ILMENTS.  107n. 

boatman  ;  but,  in  case  of  a  tempest,  it  may  sometimes 


as  are  occasioned  by  their  own  negligence,  the  defendant  can- 
not give  in  evidence,  that  in  a  case  in  which  the  plaintiff  had 
carried  the  property  of  others,  he  had  refused  to  make  compen- 
sation for  a  loss.       Dean  v    Swoop,  2  Binney  Rep.  72  ] 

A  party  interested  in  the  establishment  of  a  particular  fact, 
will  not  in  general  be  admitted  to  prove  it;  but  among  others, 
an  exception  in  favour  of  trade  has  been  allowed.  "  A  party 
"  interested  will  be  admitted  for  the  sake  of  trade  and  the  cora- 
"  mon  usage  of  business,  therefore  a  porter  shall  be  evidence  to 
^' prove  a  delivery  of  goods."  Bull.  Nisi  Prius,  289.  Theobald 
V.  Tregott,  1 1  Mod.  262.  A  servant  consequently  is  a  good 
witness  to  prove  a  delivery  of  goods  to  a  carrier.  See  Buckman 
V.  Levi,  4  Camp.  414.  So  a  book-keeper  to  a  carrier  is  a  good 
witness  for  him,  of  necessity,  without  a  release,  to  prove  the 
delivery  of  a  parcel.  Spencer  v.  Goulding,  Peake,  N.  P.  C.  129- 
But  a  promise  by  him  to  make  compensation  for  a  parcel  which 
had  been  lost,  is  not  binding  upon  the  carrier,  without  proving 
that  he  was  his  general  agent.  Olive  v.  Eames,  2  Stark.  N.  P. 
C.  181. 

A  servant  is  not  a  competent  witness  in  an  action  against  his  ^  _„-,  -, 
master,  to  disprove  the  fact  of  his  negligence,  and,  theretore,  the  *■ 
driver  of  a  coach,  or  the  master  of  a  vessel,  are  not  admissible 
on  the  par  t  of  the  owner  for  that  purpose,  because  the  servant 
is  interested  to  defeat  the  action,  since  a  verdict  against  the 
master  might  be  given  in  evidence  in  an  action  by  him  against 
the  servant  as  to  the  quantum  of  damages  Green  v.  The  New 
River  Company,  4  T.  R.  589.  Bird  v.  Thompson,  1  Esp.  N.  P. 
C.  339.  6  Esp.  N.  P.  C.  73  Phillips'  Evidence,  00.  3  ed.  In 
cases  of  this  description,  the  servant  must  be  relea^^ed  by  the 
master  before  his  evidence  can  be  received.  Per  Lee,  C.  J., 
in  Jervis  v  Hayes,  2  Str.  1083,  Miller  v.  Falconer,  1  Camp. 
N.  P  C.  251.,  but  a  release  by  one  of  several  joint  owners  of  a 
vessel  will  be  sufficient*for  the  action  against  the  captain  for  neg- 
ligence must  be  joint ;  in  which  case  a  release  by  one  would  be 


107o.  THE  LAW  OF  BAILMExNTS. 

happen  that  the  law  of  jetson  and  average  may  occasion 


pleadable   in  bar  to   the  joint  action.     Hockless  v.  Mitchell,  4 
Esp.  N.  P.  C.  16. 

In  an  action  on  the  case  for  managing  the  defendant's  vessel 
so  negligently  that  it  ran  down  the  plaintill's  barg*-,  the  declara- 
tion set  forth  that  he  was  possessed  of  the  said  btirge,  laden  with 
divers  goods  and  merchandizes,  and  Holt,  C.  J.  would  not  suf- 
fer ihe  pilot  to  be  a  witness,  because  he  was  answerable,  if  faulty 
in  steering,  to  the  master  ;  nor  would  he  sufler  any  damages  to 
be  recovered  for  the  goods  because  they  were  not  propeily  set 
forth.  Martyii  v.  Ilendrickson,  1  Salk.  287.  So,  in  an  action 
on  a  policy  of  insurance  on  the  plaintiff's  goods,  the  owner  of 
the  vessel  is  not  a  competent  witness,  without  a  release,  to  prove 
that  the  vessel  was  staunch  and  sea-wi-rthy,  for  otherwise  he 
would  be  liable  on  his  implied  warranty  that  the  vessel  was 
staunch,  and  theiefore  he  comes  to  exonerate  himself.  Rothe- 
roe  V.  Elton,  Peake,  N.  P.  C.  84.  But,  in  an  action  against  the 
owner  of  a  vessel  for  not  safely  carrying  corn,  the  plaintiff  call- 
ed the  master  to  prove  that  the  injury  arose  on  account  of  the 
vessel  not  being  sea-worthy  ;  Lord  Kenyon,  C.  J.  admitted  him 
observing,  that  the  witness  had  no  immediate  interest;  the  re- 
cord in  this  cause  would  not  be  evidence  for  or  against  him  ; 
and,  if  it  should  turn  but  that  the  ship  was  lost  by  the  negligence 
of  the  master,  still  the  present  defendant  is  liable  to  the  plaintiff; 
r  107d.  1  therefore,  taking  it  either  \v»y,  he  is  a  witness.  Lay  v.  Holock, 
Peake,  N.  P.  C,  lOl.  And,  in  an  action  for  sinking  a  barge, 
on  board  of  which  the  plaintiff  h;id  a  cargo  of  corn,  the  master 
may  be  a  witness  upon  being  released,  to  prove  negligence  on 
the  defendant's  part,  because  the  record  in  his  cause  would  not 
be  evidence  for  the  master  in  an  action  against  the  defendant 
for  the  injury  done  to  the  barge.  Spitty  v.  Bo  wen,  Peake,  N.  P. 
C.  53. 

A  carrier,  employed  by  A.  to  carry  a  sum  of  money  to  B. 
and  then  the  like  sum  to  C,  in  an  action.for  money  had  and  re- 
ceived by  A.  against  C,  is  a  good  witness  from  necessity,  with- 
out a  release,  to  prove  that  by  mistake  he  deUvered  the  first 


THE  LAW  OF  BAILMENTS.  107p. 

a  difference,     Barcroffs  case,  as   it  is  cited  by  Chief 


sum  to  C.  as  well  as  the  second.  Barker  v.   Macrae,  3  Camp, 
144. 

\_Damages. — Lian  action  against  a  carrier  by  water,  the  value 
of  the  goods  at  the  port  of  reception  is  the  proper  measure  of 
damages,  unless  some  fault  or  misconduct  on  the  part  of  the  car- 
rier should  require  the  application  of  a  different  rule.  Edmin- 
son  V.  Baxter,  4  Hayw.  Hep.  114] 

(2)  JNo  dibtinction  exists  between  a  carrier  by  land,  and  a 
carrier  by  water,  as  to  the  general  nature  of  their  duties,  or  the 
degree  of  responsibility  exacted  in  the  performance  of  them. 
As  these  have  been  pointed  out  in  the  preceding  note,  at  some 
length,  it  will  be  unnecessary  to  observe  upon  them  in  this  place  ; 
but  thediflerent  nature  of  the  element  upon  which  those  duties  are 
performed,  in  the  case  of  a  carrier  by  water,  necessarily  vary  them 
in  some  degree,  and  their  responsibility  has  also,  in  various  in- 
stances, been  limited  by  several  acts  of  parliament. 

In  every  contract  for  the  carriage  of  goods  between  a  person 
holding  himself  forth  as  the  owner  of  a  lighter  or  vessel  ready  to 
carry  goods  for  hire,  and  the  person  putting  goods  on  board,  or 
employing  the  vessel  or  lighter  for  that  purpose,  it  is  a  term  of 
the  contract  on  the  part  of  the  carrier  or  lighterman,  implied  by 
law,  that  his  vessel  is  tight  and  fit  for  the  purpose  or  employ- 
mont  for  which  he  offers,  and  holds  it  forth  to  the  public ;  and 
the  owner  will,  consequently,  be  liable  for  any  loss  arising  from 
a  breach  of  this  implied  undertaking.  Lyon  v.  Mills,  5  East. 
427-  See  Ellis,  v.  Turner,  8  T.  R.  531.  ante,  p.  105  b.  Ab- 
bott on  Shipping,  231.  4th  Ed. 

The  several  acts  of  parliament  by  which  the  responsibility  of 
a  carrier  by  water  has  been  restricted  are,  first,  by  7  Geo.  II.  c. 
15.  passed  for  the  encouragement  of  shipping,  whereby,  after 
reciting  the  liability  of  the  owners  of  vessels  for  the  loss  of  goods 
shipped  on  board  their  vessels,  although  the  loss  was  occasioned 
by  the  master  or  mariners,  without  the  knowledge  or  privity  of  r  107n.  1 
the  owners,  it  is  enacted,  by  the  first  section,  "  that  the  owners 
"  shall  not  be  liable  for  any  loss  or  damage,  by  reason  of  any 


107q.  THE  L\W  OF  BAILMENTS. 

Justice  RoUe,  has  some  appearance  of  hardship  :    *'  a 


"  embezzlement,  secreting,  or  making  away  with  (by  the  mas- 
"  ter  or  mariners)  of  an}'  goods  shipped  on  board  any  vessel,  or 
"  for  any  act,  matter,  or  thing,  damage,  or  forfeiture  done,  occa- 
"  sioned,  or  incurred  by  the  master  or  m-iriuers,  fiiriher  tb.in 
"  the  value  of  the  vessel,  wilh  her  appurtenances  and  fi eight  for 
"  the  voyage,  wherein  ihe  embezzlement,  &c  shall  be  made." 
But,  by  the  fourth  section,  it  is  provided,  that  the  act  shall  not  ex- 
tend to  lessen  the  remedy  which  any  person  may  have  against  the 
master  and  mariners,  for  any  embezzlement,  secreting,  or  mak- 
ing away  with,  any  merchandise,  or  on  account  of  any  fraud, 
abuse,  or  malversation,  in  (he  master  and  mariners  respectively. 
Under  this  statute  the  owner  of  a  ship  is  not  liable  beyond  the 
value  of  the  ship  and  freight,  in  the  case  of  a  robbery  in  which 
one  of  the  mariners  is  concerned  by  giving  intelligence,  and  af- 
terwards sharing  ihe  spoil.  In  an  action  against  a  common  car- 
r  107  T  ^^^^  '*^  recover  the  value  of  a  large  quantity  of  dollars,  shippefj 
by  the  plaintiff  on  board  a  vessel  bound  from  London  for  Ham- 
burgh, which,  during  the  night,  were  taken  by  force  from  on 
board  the  ship  by  a  number  of  fresh-water  pirates,  as  she  lay  at 
anchor  in  the  Thames,  evidence  was  offered  to  prove  that  one 
of  the  mariners  was  accessary  in  the  robbery  by  giving  intelli- 
gence ;  but  the  former  part  of  the  above  clause  alone  being  re- 
lied upon,  at  the  trial  of  the  cause.  Lord  Mansfield  was  of  opi- 
nion, that  the  word  embezzlement  was  not  broad  enough  to  cover 
this  transaction,  and  therefore  he  directed  the  jury  to  find  for 
the  plaintiff  to  the  whole  amount  of  ihe  dollars.  Upon  applica- 
tion for  a  new  trial,  however,  the  plaintiff  relying  upon  the  lat- 
ter part  of  the  clause,  Lord  Mansfield,  C.  J.,  thought  the  words 
of  the  act  were  sufficiently  comprehensive  to  include  this  matter. 
Mr.  Justice  Duller  observed,  "  This  act  is  as  strong  as  possible, 
"  and  was  meant  to  protect  the  owner  against  all  treachery  in 
"  the  master  or  mariners,  as  appears  from  the  clause  in  question, 
"  as  well  as  the  preamble  of  the  act.  It  meant  to  relieve  ihe 
"  owners  of  .ships  from  hardships,  and  to  encourage  them  ;  at  the 
'•  same  time  saying,  that  so  far  as  you  have  trusted  the  master 


THE  LAW  OF  BAILMENTS.  107r. 

box  of  jeivels  had   been  delivered  to  a  ferryman,  who 


"  and  mariners  yourself,  so  far  shall  you  be  answerable  ;  which 
"  is  to  the  value  of  the  ship  and  freight."  Sutton  v.  Miicheil,  1 
T.R.  18. 

A  more  extensive  limitation  upon  this  responsibility  is  con- 
ferred by  Stat.  26  Geo.  III.  c.  86.  s.  1.  by  which  the  owners  of 
vessels  are  further  protected  from  any  loss  or  damage  by  reason 
of  any  robbery,  embezzlement,  secreting,  or  making  away 
with,  any  gold,  silver,  diamonds,  jewels,  precious  stones,  or 
other  goods,  or  merchandize,  or  for  any  act,  matter  or  thing, 
dam  ige  or  forfeiture,  occasioned  without  the  privity  and  know- 
ledge of  the  owners,  further  th  n  the  value  of  tlie  ship  with  all 
her  appurtenances,  and  die  lull  amount  of  the  freight  due,  or  to 
grow  due  during  the  voyage,  althdugh  the  master 'ir  mariners  may 
be  concerned  in  and  privy  to  the  loss.  By  the  second  section, 
the  owners  of  vessels  are  entirely  exempted  from  answering 
for  any  loss  by  fire.  And  by  the  third  section,  "  The  owners 
"  of  vessels  shall  not  be  liable  for  any  loss  h^tp[)ening  to  gold, 
"  silver,  diamonds,  waiclu  s,  jewels,  or  precious  stcnes,  by  rea- 
"  son  of  any  robbery,  embezzlement,  making  away  with,  or  se- 
"  creting  thereof,  unless  the  owner  or  shipper,  at  the  time  of 
"  shipping,  insert  in  the  bill  of  lading,  or  otherwise  declare  in 
"  writing  t'  the  master  or  owner  of  the  vessel,  the  nature, 
"  quality,  and  value,  of  such  gold,  &c."  Th«'  fifth  section  also 
contains  a  provision  against  diminishing  the  remedy  against  the 
master  and  mariners  for  any  loss  arising  from  any  fraud,  abuse, 
or  malversation  in  them  respectively.  " 

And  by  statute  53  Geo  III.  c.  159.  reciting  the  two  former 
statutes,  it  is  provided  by  the  first  section,  "  That  the  owners  of 
"  vessels  shall  not  be  liable  to  answer  for  any  loss  or  damage  ari- 
"  sing  by  reason  of  any  act,  neglect,  m  ilter  or  thing  done,  omit- 
"  ted  or  occasioned  without  the  fault  or  privity  of  the  owners, 
*'  which  may  happen  to  nny  goods,  or  merchandize,  or  other 
"  things  laden  on  board  the  s  ime  ship  or  vessel,  or  w';ich  may  hap- 
"  pen  to  any  other  ship  or  vessel,  or  to  any  goods,  wares,  mer- 
''  chandize,  or  other  things  being  in  or  on  board  of  any  other 


107r.  THE  LAW  OF  BAILMENTS, 

"  knew  not  what  it  contained,  and  a  sudden  storm  arising' 
"  in  the  passage,  he  threw  the  box  into  the  sea  ;  yet  it 
"  was  resolved  that  he  should  answer  for  ii  ;"(/c)  now  I 

(k)  All.  93. 

'•  ship  or  vessel,  further  than  the  value  of  the  ship  or  vessel, 
and  the  freight  due  or  to  "  grow  due  during  the  vovage."  By 
J  the  second  section,  "  The  val.ie  of  the  carriage  of  woods  be- 
"  longing  to  the  owners  of  the  vessel,  and  also  the  hire  due  or 
"  to  grow  due  by  reason  of  any  contract,  except  unlv  such  hire 
"  as  in  the  case  of  a  vessfl  hired  fur  time,  m  ly  not  beirin  tt-  be 
"  earned  until  the  expiration  of  six  calend  ir  raonihs  r-fcer  the 
"  happening  of  such  loss  or  damage,  shall  be  deemed  nnd  taken 
'•'  to  be,  and  shall  be  considered  as  freigh.  wi'.hin  the  exront  •  f 
"  this  and  the  two  preceding  acts.''  The  fourth  section  c  'n- 
tains  a  provision  against  lessening  the  liabdiiy  of  the  master 
and  mariners.  And  the  tifth,  that  the  act  shall  not  ex  end  to 
lighters  or  vessels  used  solely  in  inland  nivigat di),  or  any  ship 
or  vessel  not  duly  registereJ  according  to  law.  The  act  also 
contains  various  regulations  with  respect  to  the  mode  of  pro- 
ceeding, in  case  the  value  of  the  ship,  and  the  appiirte.iances 
are  not  sufficient  to  make  compensation  for  danri<res. 

In  an  action  against  several  defendints  as  -hi[)-owners,  for 
damage  sustained  by  the  loss  of  goods  laden  on  board  their 
ship,  it  was  holden,  under  the  first  section  of  the  above  slatu-e, 
that  they  were  not  liable  in  that  character  boyoud  the  value  of 
the  ship  and  freight  due  or  to  grow  due,  although  ihe  1  -ss  was 
occisioned  by  the  misconduct  of  one  of  the  defendants,  who  w.is 
both  master  and  part  owner.  It  was  also  deci^led  in  he  same 
case,  that  in  estimating  the  value  of  the  ship,  the  calculation  is 
to  be  made  at  the  time  of  the  loss,  and  not  at  the  time  of  'he 
commencement  of  the  voyage.  And  that  the  words  "freii^ht 
due  or  to  grow  due"  comprehend  all  the  freight  for  the  voyage, 
and  that  it  makes  no  difference  whether  freight  is  paid  in  ad- 
vance or  not,  and,  therefore,  in  calculating  the  value  of  the 
freight,  money  actually  paid  in  advance  must  be  included.  Wil- 
son V.  Dickson  and  others,  2  Barn,  and  Aid.  2. 


THE  LAW  OF  BAILMENTS.  108 

cannot  help  suspecting,  that  there  was  proof  in  this  case 
of  culpable  negligence,  and  probably  the  casket  was  both 
small  and   light  enough  to   have   been  kept   longer  on 
board  than  other  goods  ;  for  in  the  case  of  Gratesend 
barge,  cited  on  the  bench  by  Lord  Coke,  it  appears,  that 
the  pack  which  was  thrown  overboard  in  a  tempest,  and 
for  which  the  bargeman  was  holden  not  ansiutrahle,  was 
of  great  value  and  great  .weight ;  although  this  last  cir- 
cumstance be  omitted  by  Rolle,  who  says  only,  that  the 
master  of  the  vessel  had  no  information  of  its  contents.{l) 
The  siibtilty  of  the  human  mind,  in  finding  distinct- 
tions,  has  no  bounds  ;  and  it  was  imagined  by  some, 
that,  whatever  might  be  the  obligation  of  a  barge-mas- 
ter,  there  was  no  reason  to  be  equally  rigorous  in  re- 
gard to  the  master  of  a  ship  :  who,  if  he  carry  goods  for 
profit  must  indubitably  answer  for  the  ordinary  neglect 
of  himself  or  his  mariners,  but  ought  not,  they  said,  to 
be  chargeable  for  the  violence  of  robbers  ;  it  was,  how- 
ever, otherwise  decided  in  the  great  case  of  Mors  and    [  109  ] 
Slew,  where  "  eleven  persons  armed  came  on  board  the 
*'  ship  in  the  river,  under  pretence  of  impressing  seamen, 
"  and  forcibly  took  the  chests  which  the  defendant  had 
"  engaged  to  carry  ;"  and  though  the  master  was  en- 
tirely blameless,  yet  Sir  Matthew  Hale  and  his  brethren, 
having  heard  both  civilians  and  common  lawyers,  and, 
among  them,  Mr.  IIolt  for  the  plaintifl',   determined, 
on  the  principles  just  before  established,  that  the  bailor 
ought  to  recover. (m)     This   case  was  frequently  men- 
tioned afterwards  by  Lord  Holt,  who  said,  that  "  the 
*'  declaration  was  drawn  by  the  greatest  pleader  in  Eng- 
*'  land  of  his  time."(ri) 


(/)  2  Bulstr.  280.  2  Ro.  Abr.  567. 
(m)  1  Ventr.  190.  23S.  Raym.  220. 
M  Ld.  Raym.  920. 

27 


lOiJ  THE  LAW  OF  BAILMENTS. 

Still  farther  ;  since  neither  the  element,  on  which  the 
goods  are  carried,  nor  the  magnitude  and  form  of  the 
carriage,  make  any  difference  in  the  responsibility  of  the 
bailee,  one  would  hardly  have  conceived,  that  a  diversity 
could  have  been  taken  between  a  letter  and  any  other 
thing.  Our  common  law,  indeed,  was  acquainted  with 
no  such  diversity  ;  and  a  private  post -master  was  pre- 
cisely in  the  situation  of  another  carrier  ;  but  the  statute 
of  Charles  II.  having  established  a.  general  post-office, 
and  taken  away  the  liberty  of  sending  letters  by  a  pri^ 
vote  post,(o)  it  was  thought  that  an  alteration  nvas  made 
[  110  ]  in  the  obligation  of  the  post-master  general :  and  in  the 
-nrcouon"^  ^^^^  ^^  -Lane  and  Cotton,  three  judges  determined, 
against  the  fixed  and  well-supported  opinion  of  Chief 
Justice  Holt,  ''  that  the  post-master  was  not  answera- 
**  able  for  the  loss  of  a  letter  with  exchequer  bills  in 
*'  it  :"(p)  now  this  was  a  case  of  ordinary  neglect,  for  the 
bills  were  stolen  out  of  the  plaiittiff's  \ettev  in  the  defend- 
anfs  ofjice  ;{q)  and  as  the  master  has  a  great  salary  for 
the  discharge  of  his  trust ;  as  he  ought  clearly  to  answer 

■  (o)  12  Cha  n.  ch  S'j  See  the  subsequent  statutes. 
(p)  Tarth.  487.  12  Mod.  i82.  (3) 
iq)  In  addition  to  the  authorities  before  cited,  p.  44-  n.,(o)  for  the  dis- 
tinction between  a  loss  by  stealth  and  by  robbery,  see  Dumoulin,  tract.  De 
eo  quod  interest,  n.  184.  and  Rosella  casuuin,  28.  b.  This  last  is  the  book 
which  St  German  improperly  calls  Summa  Rosella,  and  by  misquoting- 
whicli  he  misKd  me  in  the  passage  concerning-  the  fall  of  a  house,  p.  08- 
The  words  of  the  author,  Trovaraala,  are  these  ;  "  Domr.s  tua  minabatur 
ruin^im  ;  "  doraus  corruit,  ct  interiicit  eqiium  tib  comraodatum  ;  certe  non- 
"  protest  dici  casus  fortiiilus,  quia  diligentissimus  reparasset  domum,  vel 
"  ibi  n<>n  habitasset  ,  si  autem  domus  non  minabatur  ruinam,  sed  irapctu 
"  tempestatis  validae  corruit,  uon  est  tibi  imputandum." 


(3)  1  Ld.  Raym.  646.  S.  C.  See  also  Whitfield  v.  Lord  Le 
Despeticer,  Cowper,  7^4  where  the  decision  in  Lane  v.  Cotton 
is  confirmed  ;  and  where  it  is  settled,  thai  no  action  of  the  kint? 


THE  LAW  OF  BAILMENTS.  110 

for  the  acts  of  his  clerks  and  agents ;  as  the  statute, 
professedly  enacted  for  safety  as  well  as  despatch,  could 
not  have  been  intended  to  deprive  the  subject  of  any 
benefit  Avhich  he  before  enjoyed  ;  for  these  reasons,  and 
for  many  others,  I  believe  that  Cicero  would  have  said 
what  he  wrote  on  a  similar  occasion  to  Trebaiius,  "Ego 
tamen  sccvoL.^  assentior."(r)  It  would,  i>erhaps,  have  [  m  ] 
been  different  tmc/er  the  statute,  if  the  ppst  had  been  rob- 
bed either  by  day  or  by  night,  when  there  is  a  necessity  . 
of  travelling,  but  even  that  question  would  have  been 
disputable  ;  and  here  I  may  conclude  this  division  of  my 
Essay  with  observing,  in  the  plain  but  emphatical  lan- 
guage of  St.  German,  *'  that  all  the  former  diversities 
"  be  granted  by  secondary  conclusions  derived  upon  the 
"  law  of  reason,  without  any  statute  made  in  that  behalf; 
"  and,  peradventure,  laws  and  the  conclusions  therein  be 
*•  the  more  plain  and  the  more  open  ;  for  if  any  statute  ivere 
**  made  therein,  I  think  verily,  more  doubts  and  questions 
"  would  arise  upon  the  statute,  than  doth  now,  when  they 
"  be  only  argued  and  judged  after  the  common  law."(6) 

(r)  Epist   ad  Fam   VII.  22. 

(«)  Doct.  and  Slud.  dial.  2-  chap.  38.  last  sentence.  , 


can  be  supported  except  in  the  circumstance  of  personal  mis- 
conduct in  any  party  employed  in  the  post  office.  Jn  the  case 
of  Whitfield  V.  Lord  Le  Despencer,  which  was  an  action  brought 
against  the  Postmaster  General,  for  a  bank  note  stolen  by  one 
of  the  sorters  out  of  a  letter  delivered  into  the  Post  Office,  Lord 
Mansfield,  relying  upon  the  public  nature  of  the  post-master's 
employment — that  the  inferior  officers,  though  a[)pointed  by  him, 
gave  security  to  the  crown, — that  they  were  subject  to  heavy 
penalties,  and  what  in  others  would  be  a  breach  of  trust,  was  in 
them  declared  to  be  a  capital  felony  ;  decided,  in  concurrence 
with  the  other  judges,  that  the  action  could  not  be  maintained. 
See  JNicholson  v.  Mounsey,  15  East,  384. 


Ill  THE  LAW  OF   BAILMENTS. 

Before  I  finish  the  historical  part  of  my  Essay,  iii 
which  I  undertook  to  demonstrate  "  that  a  perfect  har- 
"  mony  subsisted  on  this  interesting  branch  of  jurispru- 
"  dence  in  the  codes  of  nations  most  emhitnt  for  legal 
"  wisdom,^' (t)  I  cannot  forbear  adding  a  few  remarks  on 
Laws  of  the     the  institutions  of  those  nations  who  arc  generally  called 

JSorthern  Na-  ,       ,  ,       ,  .  ■      .  ^     i  i„ 

tions.  harharousy  and  who  seem  m  many  mstances  to  nave  ae- 

[  112  ]  served  that  epithet  :  although  traces  of  sound  reasoning 
and  solid  judgment  appear  in  most  of  their  ordinances. 
By  the  ancient  laws  of  the  WisiGOTiis,  which  are  in- 
deed rather  obscure,  the  "  keeper  of  a  hrtrse  or  an  ox 
"  for  hire,  as  well  as  a  hirer  for  use,  was  obliged,  if  the 
"  animal  perished,  to  return  another  of  equal  worth  :" 
the  law  of  the  Baiuvarians  on  this  head  is  nearly  in  the 
same  words  ;  and  the  rule  is  adopted  with  little  altera- 
tion in  the  capitularies  of  Charlemagne  and  Levns  the 
Pious, (u)  where  the  Mosaic  law  before  cited  concerning 
a  horroivcr  may  also  be  found. (w)  In  all  these  codes  a 
dejvjshtari/  of  gold,  silver,  or  valuable  trinkets,  is  made 
chargeable,  if  they  are  destroyed  by  fre,  and  his  own 
goods  perish  not  with  them ;  a  circumstance  which  some 
other  legislators  have  considered  as  conclusive  evidence 
Laxvs  of  the  of  gross  neglect  or  fraud  :  thus  by  the  old  British  Tract, 
Britons.  called  the  Book  of  Cynawg,  a  j)erson  who  had  been 

robbed  of  a  deposit,  was  allowed  to  clear  himself  by  mak- 
ing oath,  with  compurgators,  that  he  had  no  concern  in 
the  robbery,  unless  he  had  saved  his  own  goods  ;  and  it 
was  the  same,  1  believe,  among  the  Britons  in  the  case 
of  a  loss  hj  fire,  which  happened  without  the  fault  of  the 
bailee ;  although  Howel  the  Good  seems  to  have  been 

(n  p.  11. 

(if)  Limlenbiog,  LL.  Wisigoth.  lib.  5.  tit.  5.  s.  1,  2,  3.  and  LL.     Baiuvar. 
it.  14.  s.1,2,  3.  4.     Capitullib.  5  S.204. 
{w)  Capitul.  lib.  6.  s-  22.     Exod  xxii.  14,  15. 


I 


THE  LAW  OF  BAILMENTS.  n;J 

rigorous  in  this  case  for  the  sake  of  pubhc  security.(r) 
There  was  one  regulation  in  the  Northern  code,  which  I 
have  not  seen  in  that  of  any  other  nation :  if  precious 
things  were  deposited  and  stolen,  time  was  given  to  search 
for  the  thief,  and  if  he  could  not  be  found  within  the 
time  limited,  a  moiety  of  the  value  was  to  be  paid  by  the 
depositary  to  the  owner,  "  ut  damnum  ex  medio  uterque 
3ustineret."(7/) 

Now,  I  can  scarce  persuade  myself,  that  the  phrase 
used  in  these  laws,  si  id  pcrierit,  extends  to  a  perishing 
by  inevitable  accident ;  nor  can  I  think  tl;at  the  old  Go- 
thic law,  cited  by  Stiernhooli,  fully  proves  his  assertion, 
that  "  a  depositary  was  responsible  for  irresistible  force  ;''^ 
but  I  observe,  that  the  military  lawgivers  of  the  North, 
who  entertained  very  high  notions  of  good  faith  and  ho- 
nour, were  more  strict  than  the  Romans  in  the  duties  by 
which  depositaries  and  other  trustees  were  bound  :  an 
exact  conformity  could  hardly  be  expected  between  the 
ordinances  of  polished  states,  and  those  of  a  people  who 
could  suffer  disputes  concerning  bailments  to  be  decided 
Yiy  combat ;  for  it  was  the  Emperor  Frederick  II.,  who  [  114  J 
abolished  the  trial  by  battle  in  cases  of  contested  depo- 
sits, and  substituted  a  more  rational  mode  of  proof.(2:) 

I  purposely  reserved  to  the  last  the  mention  of  the  Laws  of  the 
Hindu,  or  Indian,  code,  which  the  learning  and  indus- 
try of  my  much-esteemed  friend,  Mr.  Halhed,  has  made 
accessible  to  Europeans, (4)  and  the  Persian  translation 
of  which  I  have  had  the  pleasure  of  seeing  ;  these  laws,    , 
which  must  in  all  times  be  a  singular  object  of  curiosity, 

(x)  LL.  Hywel  Dda,  lib.  3.  cap.  4.  s.  22.  and  lib.  3.  cap.  3.  s.  40.  See  also 
Stiernli.  De  Jur.  Sueon.  p.  256,  257. 
(y)  LL.  Wisigoth.  lib  5.  tit.  5.  s.3. 
(z)  LL.  Longobard.  lib.  2  tit.  55.  s.  35.     Constit.  Neapol.  lib.  2.  tit.  .34. 

(4)    By    an    English    translation,   published    in    J 78 1,    the 
preface  to   the   work  contains  many  valuable  remarks  on  the 


114  THE  LAW  OF  BAILMENTS. 

are  noiv  of  infinite  importance  ;  since  the  happiness  of 
millions,  whom  a  series  of  amazing  events  has  subjected 
to  a  British  power,  depends  on  a  strict  observance  of 
them. 

It  is  ple^asing  to  remark  the  similarity,  or  rather  iden- 
tity, of  those  conclusions,  which  pure  unbiassed  reason  in 
all  ages  and  nations  seldom  fails  to  draw,  in  such  juridi- 
cal inquiries  as  are  not  fettered  and  manacled  by  positive 
institution ;  and  although  the  rules  of  the  Pundits  con- 
cerning  succession  to  property,  the  punishment  of  offences, 
and  the  ceremonies  of  religion,  are  widely  different  from 
ours,  yet  in  the  great  system  of  contracts  and  the  com- 
mon intercourse  between  man  and  man,  the  PoOTEE  of 
the  Indians,{o)  and  the  Digest  of  the  Romans,  are  by  no 
means  dissimilar. (a) 

Thus  it  is  ordained  by  the  sages  of  Hindustan,  that 
"  a  depositor  shall  carefully  inquire  into  the  character 
"  of  his  intended  depositary  ;  who,  if  he  undertake  to 
"  keep  the  goods,  shall  preserve  them  with  care  and  at- 

{a)  "  Haec  omnia,"  says  Grotius,  "  Romanis  quidem  congruunt  legibus, 
"  sed  non  ex  illisprimitus,  sedex  aequitate  natuiali,  veniunt :  quare  eadem 
"  apud  alias  quoque  gentes  reperire  est."  De  Jure  Belli  ac  Pacis,  liu.  2. 
cap    12.  s.  13. 

history  and  antiquities  of  India  :  with  respect  to  the  code,  Sir 
William  Jones  truly  observes,  that  "  the  rules  of  the  Pundits 
concerning  succession  to  "  propcrti/,  the  punishment  of  offences, 
"  and  the  ceremonies  oi religion,  are  widely  ditHerent  from  ours  ;" 
it  may,  however,  he  remarked,  that  the  chapter  "  of  the  divi- 
^'  sion  of  inheritable  property,"  and  that  of  justice,"  are  by  no 
means  unworthy  the  attention  of  the  British  lawyer,  who  is  dis- 
posed to  extend  the  researches  connected  with  his  professional 
science.     Halhed's  Code  of  Gentoo  Laws. 

(5)  Dr.  Robertson  (see  his  Disquisition  on  India,  Appendix,, 
p.  247 — 254.)  bestows  his  approbation  on  the  Indian  Code,  and 
compares  it  with  that  of  Justinian. 


THE  LAW  OF  BAILMENTS.  115 

"  tentioUy  but  shall  not  be  bound  to  restore  the  value  of 
"  them,  if  they  be  spoiled  by  iinforsctn  accident,  or  l>uin- 
*'  ed,  or  stolen  ;  unless  he  conceal  any  part  of  them  that 
"  has  been  saved,  or  unless  his  own  effects  be  secured,  or 
"  unless  the  accident  happen  after  his  rufusal  to  redeli- 
"  ver  the  goods  on  a  demand  made  by  the  depositor,  or 
"  while  the  depositary,  against  the  nature  of  the  trust, 
"  presumes  to  maJce  use  of  them  ;"  in  other  words,  "  the 
"  bailee  is  made  answerable  for  fraud,  or  for  such  negli- 
"  gence[6)  as  approaches  to  it."(Z') 

So  a  borrower  is  declared  to  be  chargeable  even  for 
casualty  or  violence,  if  he  fail  to  return  the  thing  after 
the  completion  of  the  business  for  which  he  borrowed  it; 
but  not,  if  it  be  accidentally  lost  or  forcibly  seized,  before 
the  expiration  of  the  time,  or  the  conclusion  of  the  affair,^ 
for  which  it  was  lent  :{c)  in  another  place  it  is  provided, 
that,  if  a  pledge  be  damaged  or  lost  by  unforeseen  acci-  [  116  '} 
dent,  the  creditor  shall  nevertheless  recover  his  debt  with 
interest,  but  the  debtor  shall  not  be  entitled  to  the  value 
of  his  pawn  ;{d)  and  that,  if  the  pledgee  use  the  thing 

(b)  Gentoo  Laws,  chap.  4-     See  before,  p.  47. 

(c)  Same  chapter.     See  before,  p.  68. 
id)  Chap.  1.  s.  1,     Before,  p.  84, 85. 


(6)  The  words  of  this  part  of  the  BraminiCal  institutions  are 
solemn  and  remarkable  :  they  prove  that  the  oriental  notions  on 
the  subject  of  hospitality  to  persons,  are  extended  with  scrupu- 
lous consistency  to  the  deposit  of  goods  "  If  a  person  should 
"  make  use  of  any  property  intrusted  to  him,  or  it  be  spoiled 
"  for  want  of  his  care  and  attention,  then  whatever  crime  it  is 
"  for  a  woman  to  abuse  her  husband,  or  for  a  man  to  murder 
"  his  friend,  the  same  degree  of  guilt  shall  be  imputed  to  him, 
"  and  the  value  of  the  trust  must  be  made  good."  Gentoo 
Laws,  c.  4.  p.  120. 


116  THE  LAW  OF  BAIL^IENTS. 

pledged,  lie  shall  pay  the  value  of  it  to  the  pledgor  in 
case  of  its  loss  or  damage,  whilst  he  uses  it.(e) 

In  the  same  manner,  if  a  person  hire  a  thing  for  use, 
or  if  any  metalhe  delivered  to  a  toorhman,  for  the  purpose 
of  making  vessels  or  ornaments,  the  bailees  are  holden 
to  be  discharged,  if  the  thing  bailed  be  destroyed  or 
spoiled  by  naturul  misfortune  or  the  injustice  of  the  ru- 
lingjjoiver,  unless  it  be  kept  after  the  time  limited  for  the 
return  of  the  goods,  or  the  performance  of  the  work.(/) 

All  these  provisions  are  consonant  to  the  principles 
established  in  this  Essay  ;  and  I  cannot  help  thinking, 
that  a  clear  and  concise  treatise,  written  in  the  Persian 
or  Arabian  language,  on  the  law  of  Contracts,  and  evin- 
cing the  general  conformity  between  the  Asiatic  and  Eu- 
ropean systems,  would  contribute,  as  much  as  any  regu- 
lation whatever,  to  bring  our  English  law  into  good  odour 
among  those  whose  fate  it  is  to  be  under  our  dominion, 
and  whose  happiness  ought  to  be  a  serious  and  continual 
object  of  our  care. 

Thus  I  have  proved,   agreeably  to  my  undertaking, 
^  J     that  the  plain  elements  of  natural  law,  on  the  subject  of 

BaiLjIEXTS,  which  have  been  traced  by  a  short  analysis, 
are  recognised  and  confirmed  by  the  wisdom  of  nations;(^) 
and  I  hasten  to  the  third,  or  synthetical,  part  of  my  work, 
in  which,  from  the  nature  of  it,  most  of  the  definitions 
and  rules  already  given  must  be  repeated  with  little  vari- 
ation in  form,  and  none  in  substance  :  it  was  at  first  my 
design  to  subjoin,  with  a  few  alterations,  the  Synopsis  of 
Delrio  ;  but  finding  that,  as  Bynkershoek  expresses 
himself,  with  an  honest  pride,  I  had  leisure  sometimes  to  ^ 
write,  but  never  to  copy,  and  thinking  it  unjust  to  embel- 
lish any  production  of  mine  with  the  inventions  of  ano- 

(e)  Chap.  1.  s.  2.     Before,  p.  81. 

(f )  Chap.  4.  and  chap.  10.     Before,  p.  08,  91 

(g)  Before,  p.  4.  and  11. 


THE  LAW  OF  BAILMENTS.  117 

ther,  I  changed  my  ])lan ;  and  shall  barely  recapitulate  'ii.  The  Syn- 
the  doctrine  expounded  in  the  preceding  pages,  observ- 
ing"* the  method  which   logicians   call   Synthesis,    and  in 
which  all  sciences  ought  to  be  explained. 

1.  To  begin   then  with  definitions  :  1.  Bailment  is  a  Definitions. 
delivery  of  goods  in  trust,  on  a  contract  expressed  or  im- 
plied, that  the  trust  shall  be  duly  executed,  and  the  goods 
re-delivered,  as  soon  as  the  time  or  use  for  which  they  were 

hailed  shall  have  elapsed  or  he  performed, 

2.  Deposit  is  a  hailment  of  goods  to  he  kept  for  the 
hailor  without  a  recompense. 

3.  Mandate  is  a  hnilmcnt  of  goods,  ivithoiit  reward, 
to  be  carried  from  place  to  place,  or  to  have  some  act  per- 
formed about  them. 

.  .  •    r  118  1 

4.  Lending  for  use  is  a  hailment  of  a  thing  for  a  certain    ^  J 
time,  to  he  used  by  tiie  borrower  without  paying  for  it. 

5.  Pledging  is  a  hailment  of  goods  by  a  debtor  to  his 
creditor  to  he  kept  till  the  debt  be  discharged. 

6.  Letting  to  hire  is,  1.  a  hailment  of  a  thing  to  he 
used  by  the  hirer  for  a  compensation  in  money  ;  or,  2.  a 
letting  out  of  ivorlc  and  labour  to  be  done,  or  care  and 
attention  to  be  bestowed,  by  the  bailee  on  the  goods  hailed, 
and  that  for  a  pecuniary  recompence  :  or,  3.  of  care  and 
pains  in  carrying  the  things  delivered  from  one  place  to 
another  for  a  stipulated  or  implied  reward. 

7.  Innominate  bailments  are  those  where  the  compensa- 
tion for  the  use  of  a  thing,  or  for  labour  and  attention  is 
not  pecuniary;  but  either,  1.  the  reciprocal  use,  ov  the 
gift  of  some  other  thing  ;  or,  2.  work  and  pains,  reci- 
jjrocally  undertaken  ;  or,  3.  the  use  or  gift  of  another 
tliin"-  in  consideration  of  care  and  labour,  and  conversely. 

8.  Ordinary  neglect  is  the  omission  of  that  care  which 
every  man   af  common  prudence,  a7id  capable  of  governing 

a  family,  takes  of  his  own  concerns. 

'      •  28 


118  THE  LAW  OF  BAILMENTS. 

0.  Gross  neglect  is  the  ivo7it  of  that  care  which  every 
man  of  common  sense,  hoiv  inattentive  soever,  takes  of  his 
own  property. 

10.  Slisrht   nep-Ject  is  the  omission  of   that    dilis-ence 

r  119  "1      .       "^   . 

«-  J     which  very  circumspect  and  thoughtful  persons  use   in  se- 

curing their  own  goods  and  chattels. 

11.  A  naked  contract  is  a  contract  made  without 
consideration  or  recompence. 

II.  The  rules,  which  may  be  considered  as  axioms, 
flowing  from  natural  reason,  good  morals,  and  sound 
policy,  are  these : 

1.  A  bailee,  who  derives  no  benefit  from  his  under- 
taking, is  responsible  only  for  gross  neglect. 

2.  A  bailee,  who  alojie  receives  kenefi  from  the  bail- 
ment, is  responsible  for  slight  neglect. 

3.  When  the  bailment  is  beneficial  to  hath  parties,  the 
bailee  must  answer  for  ordinary  neglect. 

4.  A  sptcial  agreement  of  any  bailee  to  answer  for 
more  or  lens,  is  in  general  valid. 

5.  All  bailees  are  answerable  for  actual  fraud,  even 
though  the  contrary  be  stipulated. 

6.  No  bailee  shall  be  charged  for  a  loss  by  inevitable 
accident  or  irresistible  force,  except  by  special  agreement. 

7.  Robbery  by  force  is  considered  as   irresistible  ;   but 
-     u  loss  by  private  stealth  is  presumptive  evidence  of  ordi- 
nary neglect. 

8.  Gross  neglect  is  a  violation  of  good  faith. 

9.  No  action  lies  to  compel  performance  of  a  naked 
contract. 

10.  A  reparation  may  be  obtained  by  suit  for  every 
damage  occasioned  by  an  injury. 

11.  The  negligence  of  a  servant,  acting  by  his  master's 
express  or  implied  order,  is  the  negligence  of  the  master. 


THE   LAW  OF  BAILMENTS.  120 

III.  From   these  ruks  the  following  propositions  are  Propositions. 
evidently  deducible. 

1.  _A  Depositary  is  responsible  only  for  gross  neglect ; 
or,  in  other  words,  for  a  violation  of  good  faith. 

2.  A  Depositary,  whose  character  is  known  to  his 
depositor,  shall  not  answer  for  mere  neglect,  if  he  take 
no  better  care  of  his  oicn  goods,  and  they  also  be  spoiled 
or  destroyed. 

3.  A  Mandatary  io'carr?/ is  responsible. only  for  ^ross 
neglect,  or  a  breach  of  good  faith. 

4.  A  Mandatary  to  peforrm  a  work  is  bound  to  use  a 
degree  of  diligence  adequate  to  the  performance  of  it. 

5.  A  man  cannot  be  compelled  by  action  to  perform 
his  promise  of  engaging  in  a  deposit  or  a  mandate. 

6 .  A  reparation  may  be  obtained  by  suit  for  damage 
occasioned  by  the  non-performance  of  a  promise  to  be- 
come a  depositary  or  a  mandatary. 

7.  A  borroiver  for  use  is  responsible  for  slight  negli- 
gence. 

8.  A  pawnee  is  answerable  for  ordinary  neglect. 

9.  The  Hirer  of  a  thing  is  answerable  for  ordinary 
neglect. 

10.  A   workman  for   hire    must    answer   for    ordinary     r  221  ") 
neglect  of  the  goods  bailed,  and  apply  a  degree  of  skill 

equal  to  his  undertaking. 

11.  A  Letter  to  hire  of  his  care  and  attention  is  re- 
sponsible for  ordinary  negligence. 

12;  A  Carrier  for  hire,  by  land  or  by  water,  is  an- 
swerable for  ordinary  neglect. 

IV.  To  these  rules  and  propositions  there  are  some 
exceptions : 

1.  A  man  who  spontaneously  and  officiously  engages  to         P      •• 

kenp,  or  to  carry,  the  goods  of  another,   though  without 

reivard,  must  answer  for  slight  neglect. 


[21  THE  L\W  OF  BAILMENTS. 

2.  If  a  man,  through  strong  persuasion,  and  with  re- 
lucfnncc,  undertake  the  execution  of  a  mandaic,  no  more 
can  be  required  of  him  than  a  fair  exertion  of  his  aiHity. 

3.  All  bailees  become  responsible  for  losses  by  ca- 
sualtij  or  violence,  after  their  refusal  to  return  the  things 
bailed  on  a  lawful  demand. 

4.  A  BORROWER  and  a  hirer  are  answerable  in  all 
EVENTvS,  if  they  I'^ep  the  things  borrowed  or  hired  after 
the  stipuleited  time,  or  use  them,  differently  from  their 
agreement. 

5.  A  Depositary  and  a  pawnee  are  answerable  in 
ALL  EVENTS,  if  they  use  the  things  deposited  or  pawned. 

6.  An  INNKEEPER  is  chargeable  for  the  goods  of  his 
guest  uithin  his  inn,  if  the  guest  be  robbed  by  the  ser- 
vants  or  inmates  of  the  keeper. 

7    A  COMJVION  CARRIER,  by  land  or  by  water,  must  in- 
[  122  ]     demnify,  the  owner  of  the  goods  carried,  if  he  be  ROB- 
BED of  them. 

General  coro!-  V.  It  is  7)0  exception,  h\it  n  coroUary,  fvom  the  rules, 
mZk."*  '^~  that  "  every  bailee  is  responsible  for  a  loss  by  accident 
"  or  force,  however  inevitable  or  irresistible,  if  it  be 
"  occasioned  by  that  degree  of  negligence,  for  which  the 
"nature  of  his  contract  makes  him  generally  answera- 
"  ble  ;  and  I  may  here  conclude  my  discussion  of  this 
important  title  in  jurisprudence  with  a  general  and  obvi- 
ous remarli  ;  tlmt  "  all  the  preceding  rules  and  proposi- 
"  tions  may  be  diversified  to  infinity  by  the  circmnstan- 
"  bcs  of  every  particular  case  ;"  on  which  circumstances 
it  is  on  the  Continent  the  province  of  a.  judge  appointed 
}jy  the  sovereign,  and  in  England,  to  our  constant  ho- 
nour and  happiness,  of  a /wr?/ freely  chosen  by  the  parties, 
finally  to  decide  :  thus,  when  a  painted  cartoon,  pasted 
on  canvas,  had  been  deposited,  and  the  bailee  kept  it  so 
near  a  damp  wall,  that  it  peeled,  and  was  much  injured. 


THE  LAW  OF  BAILMENTS.  122 

ihe  question,  "  whether  the  depositary  had  been  guilty 

*'  of  gross  neglect,"  was  properly  left  to  the  jury,  and,  on 

a  verdict  for  the    plaintiff  with  pretty  large  damages, 

the  court  refused  to  grant  a  new  trial ;(//)   but  it  was  the 

judge  who  determined,  that  the   defendant  was  by  law 

responsible  for  ^?-05s  negligence  only;  and  if  it  had  been 

proved,  that  the  bailee  had  kept  his  own  pictures  of  the    [  1 23  ] 

samt  sort  in  the  same  place  and  •manner,  and  that  they 

too  had  been  spoiled,  a  new  trial  would,  !•  conceive,  have 

been   granted  ;  and  so,  if  no  more  than  slight   neglect 

had  been   committed,    and  the  jury  had,   nevertheless, 

taken   upon   themselves  to    decide   against   law,  that  a 

bailee  icithout  reward  was  responsible  for  it. 

Should  the  method  used  in  this  little  tract  be  approved.  Conclusion. 
I  may  possibly  not  want  inclination,  if  I  do  not  want 
leisure,  to  discuss  in  the  same  form  every  branch  of  En- 
glish law,  civil  and  criminal,  'private  and  public ;  after 
which  it  will  be  easy  to  separate  and  mould  into  distinct 
works  the  three  principal  divisions  ;  or  the  analytical, 
the  historical,  and  the  synthetical,  parts.' 

The  great  system  of  jurisprudence,  like  that  of  the 
universe,  consists  of  many  subordinate  systems,  all  of 
which  ai'e  connected  by  nice  links  and  beautiful  depen- 
dencies ;  and  each  of  them,  as  I  have  fully  persuaded 
myself,  is  reducible  to  a  few  plain  elements,  either  the 
wise  maxims  of  national  policy  and  general  convenience, 
or  the  positive  rules  of  our  forefathers,  which  are  seldom 
deficient  in  wisdom  or  utility  :  if  law  be  a  science,  and 
really  deserve  so  sublime  a  name,  it  must  be  founded  on 
})rinciple,  and  claims  an  exalted  rank  in  the  empire  of 
reason  ;  but  if  it  be  merely  an  unconnected  series  of  de- 
crees and  ordinances,   its  use  may  remain,  though  its 

70  2  Stra.  1099.  Mvtton  and  Cook. 


123  THE  LAW  OF  BAILMENTS. 

dignity  be  lessened,  and  he  will  become  the  greatest 
lawyer  who  has  the  strongest  habitual  or  artificial  memo- 
[  124  ]  ry.  In  practice,  law  certainly  employs  two  of  the  mental 
faculties  ;  reason^  in  the  primary  investigation  and  deci- 
sion of  points  entirely  new  ;  and  memory,  in  transmitting 
to  us  the  reason  of  sage  and  learned  men,  to  which  our 
own  ought  invariably  to  yield,  if  not  from  a  becoming 
modesty,  at  least  from«^  just  attention  to  that  object,  for 
which  all  lawfe- are  framed,  and  all  societies  instituted — 

THE  GOOD  OF  MANKIND. 


APPENDIX. 


Trinity  Term,  2  Annce  Regina 

CoGGs  V.  Bernard.  3.Ld.Ray.90& 


S.  C.  Com.  133.   Salk.  26.  H.  Salk.  11    Holt.  13.  Entry.  Salk    735- 
3  Ld.  Raym.  1G3. 

In  an  action  upon  the  case  the  plaintiff  declared,  quod  ^  a  ^^"^"'** 
cum  Bernard  the  defendant,  the  tenth  of  November,  13  carry  goods 

TT7-7J    no  •  T  1  /■  A       (a)safely   and 

n  tU,  6.  at,  <yc.  assumpsisset,  salvo  et  secure  elevare,  {An.  securely,  he  is 
glice,  to  take  up)  several  hogsheads  of  brandy  then  in  a  J^r'^any'dam. 
certain  cellar  in  D.  ct  salvo  ef secure  deponere  (Ayiglice,  age  they  may 

sustain  in  the 

to  lay  them  down  again)  in  a  certain  other  cellar  in  Water-  carriage  thra' 
lane,  the  said  defendant  and  his  servants  and  agents,  tarn  tho'"hewas 
nes-lis-enter  et  improvire  put    them   down  asain  into  the  "°^  ^  common 

o    '^  .r  r  s  carrier  .and 

said  other  cellar,   quod  per  defectum  cwro;  ^psms  the  de- wns  to  have 

,.       ,  ,  .  ,  /■    1  1  nothing  for 

lenclant,  his  servants  and  agents,  one  oi  the  casks  was  the  carriage. 
staved,  and  a  great  quantity  of  brandy,  viz.  so  many  gal-  isg^antep 
Ions  of  brandy,  was  spilt.     After  not  guilty  pleaded,  and  ^2.  n  2- 
a  verdict  for  the  plaintiff,  there  was  a  motion  in  arrest  of 
judgment,  for  that  it  was  not  alleged   in  the  declaration 
that  the  defendant  was  a  common  porter,  nor  averred  that 
he  had  any   thing  for  his  pains.     And  the  case  being 

(a)  Vide  ante,  58. 


'1  APPENDIX. 

thought  to  be  a  case  of  great  consequence,  it  was  this  day 
argued  seriatim  by  the  whole  court. 

Gould,  Justice. — I  think  this  is  a  good  declaration. 
The  objection  that  has  been  made  is,  because  there  is 
not  any  consideration  laid.  But  I  think  it  is  good  either 
way,  and  that  any  man,  that  undertakes  to  carry  goods,  is 
liable  to  an  action,  be  he  a  common  carrier  or  \^  hatever 
he  is,  if  through  his  neglect  tliey  are  lost,  or  come  to  any 
damage  :  and  if  a  prcemium  be  laid  to  be  given,  then  it  is 
without  question  so.  The  reason  of  the  action  is,  the 
particular  trust  reposed  in  the  defendant,  to  which  he 
has  concurred  by  his  assumption,  and  in  the  executing 
which  he  has  miscarried  by  his  neglect.  But  if  a  man 
undertakes  to  build  a  house,  without  any  thing  to  be  had 
(aVide  2  Ld.  for  his  ijains,  an  (a)  action  will  not  lie  for  non-perform- 

Raym.  919.  5.  .    .  ,      . 

T. 'r.  149.  ance,  because  it  is  nudum  pactum.  So  is  the  3  11.  G.  30. 
.  n.  .  g^^  -p  gQQjg  g^j.g  deposited  with  a  friend,  and  are  stolen 
from  him,  no  action  Avill  lie.  29  Ass.  28.  But  there 
will  be  a  difference  in  that  case  upon  the  evidence,  how 
the  matter  appears  ;  if  they  were  stolen  by  reason  of  a 
gross  neglect  in  the  bailee,  the  trust  will  not  save  him 
from  an  action  ;  otherwise,  if  there  be  no  gross  neglect. 
So  is  Doct.  and  Stud.  129.  upon  that  difference.  The 
same  difference  is  where  he  comes  to  goods  by  finding. 
Doct.  and  Stud,  uhi  supra.  Ow.  141.  But  if  a  man  takes 
upon  him  expressly  to  do  such  a  fact  safely  and  securely, 
if  the  thing  comes  to  any  damage  by  his  miscarriage,  an 
action  will  lie  against  him.  If  it  be  only  a  general  bail- 
ment, the  bailee  will  not  be  chargeable,  without  a  gross 
neglect.  So  is  Keilw.  100.  2  H.  7.  11.  22  Ass.  41. 
1  R.  10.  Bro.  action  sur  le  case.  78.  Southcote's  case  is 
a  hard  case  indeed,  to  oblige  all  men,  that  take  goods 
to  keep,  to  a  special  acceptance,  that  they  will  keep 
them  as  safe  as  they  would  do  their  own,  which  is  a 
thin"-  no  man  hving  that  is  not  a  lawyer  could  think  of: 


APPENDIX.  W» 

and  indeed  it  ap}3ears  by  the  report  of  that  casein   Cro.  2Ld  Ray  .9 10. 

El.  815.  that  it  was  adjudged  by  two  judges  only,  viz. 

Gatvdy  and    Clench.     But  in   1    Ventr.  121.  there  is  a 

breach  assigned  upon  a  bond  conditioned  to  give  a  true 

account,  that  the  defendent  had   not  accounted  for  30Z. 

the  defendant    showed  that  he  locked  the  money  up  in 

his  master's  warehouse,  and  it  was  stole  from  thence;  and 

that  was  held  to  be  a  good  account.     But  when  a  man 

undertakes  specially  to  do  such  a  thing,  it  is  not  hard  to 

charge  him  for  his   neglect,  because  he  had  the  goods 

committed  to  his  custody  upon  those  terms. 

Pouys  agreed  upon  the  neglect. 

Powell.  The  doubt  is,  because  it  is  not  mentioned 
in  the  declaration,  that  the  defendant  had  any  thing  for 
his  pains,  nor  that  he  was  a  common  porter,  which  of 
itself  imports  a  hire,  and  that  he  is  to  be  paid  for  his 
pains.  So  that  the  question  is,  whether  an  action  will 
lie  against  a  man  for  doing  the  office  of  a  friend  ;  when 
there  is  not  any  particular  neglect  shown  ?  And  I  hold, 
an  action  will  lie,  as  this  case  is.  And  in  order  to  make 
it  out  I  shall  first  show,  that  there  are  great  authorities 
for  me,  and  none  against  me  ;  and  then  secondly,  I  shall 
show  theieason  and  gist  of  this  action  :  and  then  thirdly, 
I  shall  consider  Southcote's  case. 

1.  Those  authorities  in  the  Register  110.  a.  b.  of  the 

pipe  of  wine,  and  the  cure  of  the  horse,  are  in  point,  and 

there  can  be  no  answer  given  them,  but  that  they  are 

writs,  which  are  framed  short.     But  a  writ  upon  the  case 

must  mention  every  thing  that  is  material  in  the  case,  and 

nothing  is  to  be  added  to    it  in  the  count,  but  the  time, 

and  such  other  circumstances.     But  even  that  objection 

is  answered  by  Past.  Entr.  13.  c.  where  there  is  a  decla- 

2D 


iv  APPENDIX. 

ration  so  general.  The  year  books  are  full  in  this  point. 
43  Ed.  3.  33.  a.  there  is  no  particular  act  showed.  There 
indeed  the  weight  is  laid  more  upon  the  neglect  than  the 
contract.  But  in  48  Ed,  3.  6.  and  19  H.  6. 49.  there  the 
action  is  held  to  lie  upon  the  undertaking,  and  that  with- 
out that  it  would  not  lie  ;  and  therefore  the  undertaking 
is  held  to  be  the  matter  traversable,  and  a  writ  is  quash- 
ed for  want  of  laying  a  place  of  the  undertaking.  2  H.  7. 
11.  7  II.  4.  14.  these  cases  are  all  in  point,  and  the  ac- 
tion adjudged  to  lie  upon  the  undertaking. 

2.  Now,  to  give'  the  reason  of  these  cases,  the  gist  of 
these  actions  is  the  undertaking.  The  party's  sj^ecial 
assumpsit  and  undertaking  obliges  him  so  to  do  the  thing, 
that  the  bailor  come  to  no  damage  by  his  neglect.  And 
the  bailee  in  this  case  shall  answer  accidents,  as  if  the 
goods  are  stolen  ;  but  not  such  accidents  and  casualties 
as  happen  by  the  act  of  God,  as  fire,  tempest,  Sec  So 
3Ld.Ray.9n  it  is  1  Jones  179.  Palm.  5^8.  For  the  bailee  is  not 
bound,  upon  any  undertaking  against  the'  act  of  God. 
Justice  Jojies  in  that  case  puts  the  case  of  the  22  Ass. 
where  the  ferryman  overladed  the  boat.  That  is  no  au- 
thority I  confess  in  that  case,  for  the  action  there  is 
founded  upon  the  ferryman's  act,  viz.  the  overlading  the 
boat.  But  it  would  not  have  lain,  says  he,  without  that 
act ;  because  the  ferryman,  notwithstanding  his  under- 
taking, was  not  bound  to  answer  for  storms.  But  that 
act  would  charge  him  without  any  undertaking,  because 
it  was  his  own  wrong  to  overlade  the  boat.  But  bailees 
are  chargeable  in  case  of  other  accidents,  because  they 
have  a  remedy  against  the  wrong-doers  :  as  in  case  the 
goods  are  stolen  from  him,  an  appeal  of  robbery  will  lie, 
wherein  he  may  recover  the  goods,  which  cannot  be  had 
against  enemies,  in  case  they  are  plundered  by  them  ; 
and  therefore  in  that  case  he  shall  not  be  answerable. 


APPENDIX.  T 

But  it  is  objected,  that  here  is  no  consideration  to  ground 
the  action  upon.     But  as  to  this,  the  difference  is,  be- 
tween being  obhged  to  do  tlie  thing,  and  answering  for 
things  which  he  has  taken  into  his  custody  upon  such  an 
undertaking.     An  (a)   action   indeed  will  not  lie  for  not  (a)  Vide  2  Ld. 
doing   the  thing,  for  want  of  a  sufficient  consideration;  ^i^'^^ook    *^ 
but  yet  if  the  bailee  will  take  the  goods  into  his  custody*  t'l^^re  ^iied. 
he  shall  be  answerable  for  thcni  ;  for  the  taking  the  goods 
into   his   custody   is   his   own  act.     And  this  action  is 
founded   upon   the  warranty,   iqion  which  I  have  been 
contented  to  trust   you  with  the -goods,  which  without 
such  a  warranty  I  would  not  have  done.     And  a  man  Warranty 
may  warrant  a  thing  without  auy   consideration.     And  sideration  is 
therefore,  when  I  have  reposed  a  trust  in  you,  upon  your  |b'i'*c  ^ '.VeT 
undertaking,  if  I  suffer,  when  I  have  so  relied  upon  you, 
I  shall  have  my  action.     Like  the  case  of  the  Countess 
of  Salop.     An  action  will  not  lie  against  a  tenant  at  will 
generally,  if  the  house   bo  burnt  down.     But  if  the  ac- 
tion  had  been   founded   upon  a  special  undertaking,  as 
that  in  consideration,  the  lessor  would  let  him  live  in  the 
house,  he  promised  to  deliver  up  the  house  to  him  again 
in  as  good  repair   as   it  was  then,  the(^)  action  would   b)  Vide  Cm. 
have  lain  upon  that  special  undertaking.     But  there  the  1^33  ^nj  '45 
action  was  laid  generally. 

3.  Soutlicott' s{c)  case  is  a  strong  authority,  and  the 
reason  of  it  comes  home  to  this,  because  the  general 
bailment  is  there  taken  to  be  an  undertaking  to  deliver 
the  goods  at  all  events,  and  so  the  judgment  is  founded 
upon  the  undert  dving.  But  I  cannot  think,  that  a  gene- 
ral bailment  is  an  undertaking  to  keep  the  goods  safely 
at  all  events.  That  is  hard.  Colce  rej)orts  the  case  upon 
that  reason,  but  makes  a  difference  were  a  man  under- 

(e)  The  notion  in  Southcote's  case,  4  Rep.  83  b.  that  a  general  biilmpnt 
and  a  bailment  to  be  safely  kept  is  all  one,  was  ii>iiied  to  be  law  by  th^ 
whole  Court,  ex  relatione  m'ri  Bunbury.     Psote  to  3d  Ed. 


VI  APPENDIX. 

takes  specially,  to  keep  goods  as  lie  will  keep  his  own. 
Let  us  consider  tlie  reason  of  the  case.     For  nothing  ie 

2  Ld.  Rrnjm.  ^^w  that  is  not  reason.  Upon  consideration  of  the  aii- 
^^^'-  thoritics  there  cited,  I  find  no  such  difference.  In  9  Ed. 
4.  40.  b.  tliere  is  such  an  opinion  by  Danhy.  The  case 
in  3  H.  7.  4.  was  of  a  special  bailment,  so  that  that  case 
cannot  go  very  far  in  the  matter.  6  H.  7.  12.  there  is 
such  an  opinion  by  the  bye.  And  this  is  all  the  founda- 
tion of  Southcote' s  case.  But  there  are  cases  there  cited, 
which  are  stronger  against  it,  as  10  H.  7.  26  .29.  Ass.  28. 
the  case  of  a  pawn.  My  lord  Coke  would  distinguish 
that  case  of  a  pawn  from  a  bailment,  because  the  pawnee 
has  a  special  property  in  the  pawn  ;  but  that  will  make 
no  difference,  because  he  has  a  special  property  in  the 
thing  bailed  to  him  to  keep.  8  Ed.  2.  Fitzh.  Detinue^  59. 
the  case  of  goods  bailed  to  a  man,  locked  up  in  a  chest, 
and  stolen  ;  and  for  the  reason  of  that  case,  sure  it  would 
be  hard,  that  a  man  that  takes  goods  into  his  custody  to 
keep  for  a  friend,  purely  out  of  kindness  to  his  friend, 
should  be  chargeable  at  all  events.  But  then  it  is  an- 
!-\vered  to  that,  that  the  bailee  might  take  them  specially. 
There  are  many  lawyers  don't  know  that  difference,  or 
however  it  may  be  with  them,  half  mankind  never  heard 
of  it.  So,  for  these  reasons  I  think  a  general  bailment  is 
not,  nor  cannot  be  taken  to  be,  a  special  undertaking  to 
keep  'the  goods  bailed  safely  against  all  events.     But  if 

(a)  Vide  ante  («)  a  man  docs  undertake  specially  to  keep  goods  safely, 
'  "   ■   ■     that  is  a  warranty,  and  will  oblige  the  bailee  to  keep  them 
safely  against  perils,  where  he  has  his  remedy  over,  but 
not  against  such  where  he  has  no  remedy  over. 

Holt,  Chief  Justice. — The  case  is  shortly  this.  This 
defendant  undertakes  to  remove  goods  from  one  cellar  to 
another,  and  there  lay  them  down  safely,  and  he  mana- 
ged them  so  negligently,   that  for  \^ant  of  care  in  him 


APPENDIX,  vii 

some  of  the  goods  were  spoiled.  Upon  not  guilty  plead- 
ed, there  has  been  a  verdict  for  the  plaintiff,  and  that 
upon  full  evidence,  the  cause  being  tried  before  me  at 
Guildhall.  There  has  been  a  motion  in  arrest  of  judg- 
ment, that  the  declaration  is  insufficient,  because  the  de- 
fendant is  neither  laid  to  be  a  common  porter,  nor  that 
he  is  to  have  any  reward  for  his  labour.  So  that  the 
defendant  is  not  chargeable  by  his  trade,  and  a  private 
person  cannot  be  charged  in  an  action  without  a  reward. 
I  have  had  a  great  consideration  of  this  case,  and  be- 
t;ause  some  of  the  books  make  the  action  lie  upon  the 
reward,  and  some  upon  the  promise,  at  first  I  made  a 
great  question,  whether  this  declai'ation  was  good.  But 
upon  consideration,  as  this  declaration  is,  I  think  the 
action  will  well  lie.  In  order  to  show  the  grounds,  upon 
which  a  man  shall  be  charged  with  goods  put  into  his 
custody,  I  must  show  the  several  sorts  of  bailments. 
And  {a)  there  are  six  sorts  of  bailments.     The  first  sort  («)  Vide  ante 

35 

of  bailment  is,  a  bare  naked  bailment  of  goods,  delivered 
by  one  man  to  another  to  keep  for  the  use  of  the  bailor  ;         913."^'" 
and  this  I  call  a  depositum,  and  it  is  that  sort  of  bailment 
which  is  mentioned  in  Southcote's  case.     The  second  Commoda- 
sort  is,  when  goods  or  chattels  that  are  useful,  are  lent  to  *"'"" 
a  friend  gratis,  to  be  used  by  him  ;    and  this  is  called 
commodatum,  because  the  thing  is  to  be  restored  in  specie. 
The  third  sort  is,  when  goods  are  left  by  the  bailee  to  be 
used  by  him  for  hire  ;    that  is  called  locatio  et  conductio, 
and  the   lender  is  called  locato,  and  the  borrower  con- 
ductor.    The  fourth  sort  is,  when  goods  or  chattels  are  Pawns. 
delivered  to  another  as  a  pawn,  to  be  a  security  to  him 
for  money  borrowed  of  him  by  the  bailor  ;    and  this  is 
called   in  Latin,   vadium,  and  in  English,   a  pawn  or   a 
pledge.     The  fifth  sort  is  when  goods  or  chattels  are  de-  Tiiing^s  to  be 
livercd  to  be  carried,  or  something  is  to  be  done  about  rrewar'd.''  ""' 


Vm  APPENDIX. 

them  for  a  reward  to  be  paid  by  the  person  who  delivers 
To  be  carried  fhem  to  the  bailee,  who  is  to  do  the  thinff  about  them. 

without    re-  .  ,  ,  ,        ^ 

ward.  The  sixth  sort  is  when  there  is  a  delivery  of  goods  or 

chattels  to  somebody,   who   is  to  carry  them,  or  to  do 
something  about  them  gratis,  without  any  reward  for 
such  his  work  or  carriage,  which  is  this  present  case. 
I  mention  these  things,  not  so  much  that  they  are  all  of 
them  so  necessary  in  order  to  maintain  the  proposition 
which  is  to  be  proved,  as  to  clear  the  reason  of  the  obli- 
gation, which  is  upon  persons  in  cases  of  trust. 
A  man  who  re-      As  to  the   (g)  first  sort,  wlicrc  a  man  takes  goods  in 
fj'e'p  ^^atis  for  ^^^  custody  to  keep  for  the  use  of  the  bailor,  I  shall  con- 
the  use  of  the  gider,  for  what  things  such  a  bailee  is  answerable.     He 

bailor  is  not      ,  _ 

answerable  is  not  answcrable,  if  they  are  stolen  without  any  fanlt  in 
lor  any  aam-  him,  neither  will  a  common  neglect  make  him  chargea- 
"^s^iain^uni'e^^  '''^'  ^"^  ^^^  must  be  guilty  of  some  gross  neglect.  There 
lie  was  guilty  jg  J  coufcss  a  great  authority  against  me,  where  it  is 

of  some  gross  _  _ 

neglect  with  held,  that  a  general  delivery  will  charge  the  bailee  to 
[hefa.*^  °  answer  for  the  goods  if  they  are  stolen,  unless  the  goods 
VideStr.  lO'D  ^^.^  specially  accepted,  to  keep  them  only  as  vou  will 

Ivor  even  then  i  j  i  '  i  j  j 

if  he  was  guilty  keep  your  own.  But  {h)  my  lord  CoTie  has  improved 
neglect  with  the  casc  in  his  report  of  it ;  for  he  will  have  it,  that  there 
rc>pect  to  his  j^  ^^^  difference  between  a  special  acceptance  to  keep 
safely,  and  an  acceptance  generally  to  keep.  But  there 
D.  ace.  2  Ld.  •    ^^^  reason  nor  justice  in  such  a  case  of  a  general  bail- 

Riiym.  65o.  **  ^ 

Semb.  ace.  mcnt,  and  where  the  bailee  is  not  to  have  any  reward, 
Vide  ante  44.  but  keeps  the  goods  merely  for  the  use  of  the  bailor,  to 
charge  him  without  some  default  in  him.  For  if  he 
keeps  the  goods  in  such  a  case  with  an  ordin'ary  care,  he 
has  performed  the  trust  reposed  in  him.  But  according 
to  this  doctrine  the  bailee  must  answer  for  the  wrongs  of 
other  people,  which  he  is  not,  nor  cannot  be,  sufficiently 
armed  against.     If  the  law  be  so,  there  must  be  some 

(n)Vide  ante  36  (b)  Vide  2  Ld.  Rajrm.  655.  ante  41 


APPENDIX.  IX 

ju^t  and  hf^nest  reason  for  it,  or  else  some  universal  set- 
tled rule  of  law,  upon  which  it  is  grounded  ;  and  there- 
fore it  is  incumbent  upon  them  that  advance  this  doc- 
trine, to  show  an  undisturbed  rule  and  practice  of  the 
law  according  to  this  position.     But  to  show  that  the 
tenor  of  the  law  was  always  otherwise,  I  shall  give  a  his- 
tory of  the  authorities  in  the  books  in  this  matter,  and 
by  them  show,  that  there  never  was  any  such  resolution  2  Ld.Ilay.9H. 
given  before  Southcote's  case.     The   29  Ass.  28.  is  the 
first  case  in  the  books  upon  that  learning,  and  there  the 
opinion  is,  that  the  bailee  is  not  chargeable,  if  the  goods 
are  stolen.     As  for  8  Ediv.  2  Fitz.  Detinue.  59.  where 
goods  were  locked  in  a  chest,  and  left  with  the  bailee^ 
and  the  owner  took  away  the   key,  and  the  goods  were 
stolen,  and  it  was  held  that  the  bailee  should  not  answer 
for  the  goods.     That  case  they  say  differs,  because  the 
bailor  did  not  trust  the  bailee  with  them.     But  1  cannot 
see  the  reason  of  that  difference,  nor   why  the   bailee 
should  not  be  charged  with  goods  in  a  chest,  as  well  as 
with  goods  out  of  a  chest.     For  the  bailee  has  as  little 
power  over  them,  when  they  are  out  of  a  chest,  as  to  any 
benefit  he  might  have  by  them,  as  when  they  are  in  a 
ehest ;  and  he  has  as  great  power  to  defend  them  in  one 
case  as  in  the  other.     The  case  of  9  Edw.  4.  40.  h.  was 
but  a  debate  at  bar.     For   Danhy  was  but  a  counsel 
then,  though  he  had  been  chief  justice  in  the   beginning 
of  Ed.  4.  yet  he  was  removed,   and  restored  again  ujon 
the  restitution  of  Hen.  6.  as  appears  by  DiigdaWs  Chro- 
nica Series.     So  that  what  he  said  cannot  be  taken  to  be 
any  authority,    for  he  spoke  only  for  his  client  ;  and 
Genney  for  his  client  said   the  contrary.     The  case  in 
3  Hen.  7.  4.  is  but  a  sudden  opinion,  and  that  but  by 
half  the  court  ;  and  yet  that  is  the  only  ground  for  this 
opinion  of  my  lord  Coke^  which  besides  he  has  improved. 
But  the  practice  has  been  always  at   GuildhaU,  to  dis- 


*  .  APPENDIX. 

allow  that  to  be  a  sufficient  evidence  to  charge  the 
bailee.  And  it  was  practised  so  before  my  time,  all 
Chief  Justice  Pew6erz!on's  time,  and  ever  since,  against 
the  opinion  of  that  case.  When  I  read  Southcote's  case 
heretofore,  I  was  not  so  discerning  as  my  brother  Powys 
tells  us  he  was,  to  disallow  that  case  at  first,  and  came  not 
to  be  of  this  opinion,  till  I  had  well  considered  and 
digested  that  matter.  Though  I  must  confess  reason  is 
strong  against  the  case  to  charge  a  man  for  doing  such  a 
friendly  act  for  his  friend  ;  but  so  far  is  the  law  from 
being  so  unreasonable,  that  such  a  bailee  is  the  least 
chargeable  for  neglect  of  any.  For  if  he  keeps  the 
goods  bailed  to  him  but  as  he  keeps  his  own,  though  he 
keeps  his  own  but  negligently,  yet  he  is  not  chargeable 
for  them  ;  for  the  keeping  them  as  he  keeps  his  own,  is 
an  argument  of  his  honesty.  A  fortiori  he  shall  not  be 
charged,  where  they  are  stolen  without  any  neglect  in 
him.  Agreeable  to  this  is  Bracton,  lib.  3.  c.  2.  99.  h.  J.  S. 
apud  quern  res  deponitur,  re  obJigatur,  et  de  ea  re,  quam 
accepit,  restituenda  tenetur,  et  etiam  ad  id,  si  quid  in  re  de- 
posita  dolo  commiserit ;  cuepcB  autem  nomine  non  tenetury 
scilicet  dccidicc  vel  negligentia,  quia  qui  ncgligtnti  arnica 
rem  custodiendam  tradit,  sibi  ipsi  et  propria  fatnitati  hoc 
debet  imputare.  As,  suppose  the  bailee  is  an  idle,  care- 
less, drunken  fellow,  and  comes  home  drunk,  and  leaves 
all  his  doors  open,  and  by  reason  thereof  the  goods  hap- 
pen to  be  stolen  with  his  own  ;  yet  he  shall  not  be 
ijLd.Ray  915.  charged,  because  it  is  the  bailor's  own  folly  to  trust  such 
an  idle  fellow.  So  that  this  sort  of  bailee  is  the  least 
responsible  for  neglects,  and  under  the  least  obligation 
of  any  one,  being  bound  to  no  other  care  of  the  bailed 
D-oods,  than  he  takes  of  his  own.  This  Bracton  I  have 
cited  is,  I  confess,  an  old  author,  but  in  this  his  doctrine 
is  ao-reeable  to  reason,  and  to  what  the  law  is  in  other 


APPENDIX.  XI 

countries.  The  civil  law  is  so,  as  you  have  it  in  Justi- 
nian's Inst.  lib.  3.  tit.  15.  There  the  law  goes  farther, 
for  there  it  is  said,  Ex  co  solo  tenetur,  si  quid  dolo  com- 
miserit  :  culpae  autem  nominie,  id  est,  desidise  ec  negli- 
gentia,  non  tenetur.  Itatjue  securus  est  qui  parum  di- 
ligenter  custoditam  rem  furto  amiserit,  quia  qui  negli- 
genti  amico  rem  custodiendam  tradit,  non  ei,  sed  sua?  fa- 
cilitati  id  imputare  debet.  So  that  a  bailee  is  not  charge- 
able without  an  apparent  gross  neglect.  And  if  there 
is  such  a  gross  neglect,  it  is  looked  upon  as  an  evidence  ^  s''**^'^  "5^" 

°  .=■  '  *  led  an  evi- 

of  fraud.  Nay,  suppose  the  bailee  undertakes  safely  and  deuce  of  fraud 
securely  to  keep  the  goods,  in  express  words,  yet  even 
that  won't  charge  him  with  all  sorts  of  neglects.  For  if 
«uch  a  promise  were  put  into  writing,  it  would  not  charge 
so  far,  even  then.  Hob.  34.  a  covenant,  that  the  cove- 
nantee shall  have,  occupy,  and  enjoy  certain  lands,  does 
not  bind  against  the  acts  of  wrong-doers.  3  Cro.  214. 
ace.  2  Cro.  425.  ace.  upon  a  promise  for  quiet  enjoyment. 
And  if  a  promise  will  not  charge   a  man  against  wrong-  Tnonghaman 

•  o  n  o     who  takes 

doers  when  put  in  writing,  it  is  hard  it  shoidd  do  it  more  goods  to  keep 
so  when  spoken.  Doct.  and  Stud.  130.  is  in  point,  that  use  of  thebaic 
though  a  bailee-do  promise  to  rc-delivcr  goods  safely,  yet  ''^'^jerrfkes^to 
if  he  have  nothing  for  the   keeping  of  them,  he  will  not  red.  liver  them 

^  ^       °  '  safely,    he    i» 

be  answerable  for  the  acts  of  a  wrong-doer.  So  that  not  responsi- 
there  is  neither  sufficient  reason  nor  authority  to  support  ijjg  q^  dam- 
the  opinion  in  Southcote's   case;  if  the  bailee  be  guilty '^'^t  *"^'^''*^'°"'' 

i  '  ^         ''    ed  by  a  wrong- 

of  gross  negligence,  he  will  be  chargeable,  but  not  for  cioer.  Sedvi> 
any  ordinary  neglect.  Asto  the  second  sort  'or  baihnent,  ,  he  borrower 
viz.  commodatum  or  lending  gratis,  the  borrower  is  bound  sp,fn°'ii,iV*for 
to  the  strictest  care  and  diligence  to  keep  the  goods,  so  '^"y.  damage 

/^  '  ^  or    loss   U    It 

as  to  restore  then  back  again  to  th»  lender,  because  the  was  occasion* 
bailee  has   a  benefit   by  the   use  of  them,  so  as  if  the  g-^ct.     Vide 
bailee  be  guilty  of  the  least  neglect,  he  will  be  answera-  |'"'^f  ^e' 'use^d 
ble  :    as  if  a  man  should   lend  ariother  a    horse,   to  go  ihe^'oodsin  a 

_  1         •/•     1  •!  1     "laniier  not 

westward,  or  for  a  month ;  if  the  bailee  go  northward,  warraiusd.  by 

30 


Xii  APPENDIX. 

(he  ferins  of  or  Ivccp  the  lioi'se  nbove  M  inoiitli,  if  any  accident  happen 
the  lojni    vide  ^    ^.j      |,y,.^Q  m  j[,..  aorthcm  ioiirney,  or  after  the  expira- 

anie  OU.  OU.  j  .'  '  i 

tioii   of  tlie    DioiJlli,    the  bailee  will   be  chargeable  ;  be- 
cause he  has  made  use  of  the  hoise  conlrar)  to  the  trust 
he  was  lent  to  bin)  uiiiier,  ajid  it  may  be  if  tlic  iiorse  had 
been  used    iio  uiherwise  lliau   he  was  lent,  that  accident, 
would  noi    have  befallen   him.     'J'his   is   nientioned   in 
Bractou,  ubi  sui)ra  :  iii>  worls  are,   Is  autem  cui  res  ah- 
fpia  iitcnda  daiur,  vc  o!»lii;atiH",  (|iia'  commodata  est,  sed 
magna  diireremci  est   niter   miituuin    et  commodatum  ; 
quia  is  «|iii  rem  inutiiaia  accepit,  ad  i|)sam   restituendam 
2Ld.Ray9i6.  teuetur,  vel  ejus  protimn,  si    foite  incendio,  ruina,   nau- 
fragio,  aut  iatronum  \  «d  liustiun)  iucursu,  cbnsuinpta  fii- 
Note  ill  the     crit,    vel   deperdita,  subtracta  vel  ablata.      Et  qui  rein 
Kracioa  be-    ntciidam  accesjii,  non  sufticit  ad  rei  custodiam,   quod  ta- 

lore  iiic,     t    is  .  .. 

commod;iiain   Icu)  di I tj,eiit laui  adhiljeat,  t|ualem  suis  rebus  propriis  ad- 

l)iit  that    must  ,  ■,  i    ^       •      i  i   r  ^-  *    "i-  *     r  i 

be  rt  m  stiike  hibere  solet,  si  aim*  cam  «iiligentius  potuit  custouire  ;  ad 
a    vou  will     vim  autem  maioreu),  vel  casus  fortmtos  non  tejietur  quis, 

tinu    by  Jusli-  •*  '■ 

nian,  ubi  su-  nisi  eulpa   sua    iiitervcneiit.      Ll   si  rem  sirbi  commoda- 

pra,  from 

whence  Biac-  taui    domi,     scciuu     (h;tiilcrit    cum     peregre    protectus 

t  n  lias   taken  ,.        -,        ^       ii  •  i        .•  i  i  i 

.,n  jjjg  jjig,;,,^,  luerii,  et  illam  mcursu  liostmm  vel  pra!Uonum,  vel 
tions,  and  that  ^jjjmi-j.jj^jy   aiuiserit,    non  est  'dubium    quin   ad   rei   res- 

almost  word  '^  '■' 

for  word.         titutioncin    teneatm-.       1    cite    this    author,    though    1 
confess  he  is  an  oUl  one,  because  his  opinion  is  reasona- 
ble, and  very  niuch  to  my  present   purpose,  and  there  is 
The  borrower  "o  authority  in   the   law   to  the   contrary.      Cut  if  the 
uf  goods  shall  jjailce   put  this  horse  in  his  stable,  and  he  were  stolen 

not  be  respon-  '  ' 

sibie  for  a  loss  fi-oni  theiico,  the  bailee  shall  not  be  answerable  for  him. 

by  robbery, 

unless  the  But  if  he  or  his  servant  leave  the  house  or  stable  doors 
occasioned  or  opcH,  and  the  thieves  take  the  opportunity  of  that,  and 
laciiitaied  by    gjgal  the  horse,  he  will  be  charsreable  ;  because  the  neff- 

some  neglect  •  a  '  o 

on  his  part,     Icct   gavc  the   tiiicvcs   tlic  occasioii  to  steal  the  horse. 

Vide  ante  t)6.     „  i        ,       i  i  i 

Uracton  says,  the  bailee  must  use  the  utmost  care,  but 
yet  he  shall  not  be  chargeable,  where  there  is  such  a 
force  as  lie  cannot  resist. 


APPENDIX.  '    xm 

As  to  the   tbiicl   sort  of  hailmcnt,   srilicot   locatio  or  Tiie  hirer  of 

gfoods  IS  res- 

leiuliu<>  (or  hire  in  tlii.s  f  a.sc  the  bailee  is   aJso  hoimd  to  ponsibie 

whorcvcr  the 

take  the  utmost  care,  and  lo  return  llu;  Jioods,  when  the  borrower 
time  of  the   hiriiii;  i>  expired.      And   here  apaiii  I  mast  ^^j^"  ante  8*^ 

recur  to  mv  old  author,  Col.  ()"2.  (».  (Jni  pro  u>;u  vesr-timeu-  and  not  else- 
where, 
toruin,    auri   \(d   ariieiiti,  vel  alterius  ornamenti,  vel  ju- 

iiienti,  mereedem  dederit  vel  j>roiiii-;erii,  talis  ah  eo  de- 
sidcratur  custodia,  (iuah'm(fl')  diHo'eutissinius  paterfami- 
lias snis  rehiis  ad  hihet,   (Uiam  si  prai'stiterit,  et  rem  ali-  ^"^  '*^"'^  ^"*^ 

'  _  feo. 

quo  casn  amiserit,  ad  rem  restitnendarn  iioii  tenehitur. 
IMec  salRcit  alifjuem  talem  diligentiam  adhibere,  qualem 
snis  rel)MS  propriis  adbiberet,  nisi  talem  adhibiierit,  de 
qua  superius  dietimi  est.  From  whence  it  appears,  that 
if  goods  are  let  out  for  a  reward,  the  hirer  is  bound  to 
tho  utmost  diligence,  such  as  the  most  diligent  father  of 
a  family  uses  ;  and  if  he  uses  that,  he  shall  be  dischar- 
ged. i3ut  every  man,  how  diligent  soever  he  be,  being 
liable  to  the  accident  of  robbers,  though  a  diligent  man 
is  not  so  lial>le  as  a  careless  man,  the(^^)  bailee  shall  not 
be  answerable  in  this  case,  if  the  goods  are  stolen.  o  Ld.  Kayin. 

As   to  the  fpurth  sort  of  bailment,  viz.  vadium  or  a  ^^^'^^ 
pawn,   in  this   (  shall  consider  two  things  ;  first,  what 
property  the  [tawnee  has  in  the  |)awn  or  pledge,  and  se- 
condly, for    what   neglects  he  shall    make  satisfaction. 
As  to  the  first,  he  has  a  special  property,  for(o')  the  pawn  lf\,^' ^^^ 
is  a  securinii-  to  the  pawnee,  that  he  shall   be  repaid  his  Holt.  528. 

I      "  ,1  .  •  ^         r-     ^       Salk.522. 

ael)t,  and  to  compel  tlie  pawnor  to  pay  lum.     Jsut  it  the  2  Ld.  Raym. 
pawn  be  such  as  it  will  be  the  worse    for  using,  the(/>)  Vj^'g  p  3 
pawnee  cannot  use  it,  as  clothes,  <fcc.  but   if  it  be  such  ^nik.  26S. 

^  ■     .    '  .  .  Holt  52  !. 

as  wTll  be  never  the  worse,  as  if  jewels  for  the  purpose  Saik.  5:2. 
were  pawned  to  a  lady,  she(c)  might  use  them.  But  g^iik  2,5s. 
then  she  must  do  it  at  her  peril ;  for  whereas,  if  she  keeps  ^"'^  ^|^/ 
them  locked  up  in   her  cabinet,  if  her  cabinet  should  be  vide  ante  80, 

81. 

broke   0[)en,   aiid  the    jewels    taken    from  thence,    she  u  a  pawnee 


\1V  APPENDIX. 

use  iiie  pawn    ^yould   1)6  excusetl  :  if   ghe  Avtnis  tlcm   pbroad,  nnci  is 

about  tlie 

ke.p.ns;  of      thcrc  lobbcd  of  them,  she  will  he  answerabic.     And  the 

which  lie  IS  at  .  .  ...  i-        i  • 

no  charge,  he  icasou  IS,  bccause  the  pawn  IS  in  the  nature  oi  a  deposit, 
L\aiVe»^.'nts'^  and  as  such  is  not  liable  to  be  used.  And  to  this  effect 
for  iDj  loss  or  jg  (^j,,^  123.     But  if  the  pawn  be  of  such  a  nature,  as  the 

damage  _  •  • 

wh  ch  may      pawHce  is   at  any  charge  about  the  thing  pawned,  to 

happen  with  ■    ,     •        -^  i  r  i         /  '\    ^i 

respect  to  it  nianitaui  it,  as  a  horse,  cow,  ccc.  then(  /)  the  pawnee 
w  ,iie  h '  IS  us-  yy^.^^y  j^j g g  j|jg  \iQy^Q  j^  5^  feasouable  manner,  or  milk  the 
Saik.  ^6  .        cow.  Sec.  in  reconiijeiice  for  the  meat.     As  to  the  se- 

t»o!t    28.  ,         .  _  *     ^ 

Saik  5:2  vide  cond  point,  Bracton  99.  b.  gives  you  the  answer.  Credi- 
("i's^^F  3  ^^^'  •!"'  pignus  accepit,  re  obligatur  ;  et  ad  illara  restitu- 
Saik.  2ijS.       endain  tenetur  ;  et  cum  huiusmodi  res  in  pionus  data  sit 

H.)lt  528.  .  ...  . 

Saik.  52.'.       utriusque  gratia,  scilicet  debitoris,  quo  magis  ei  pecunia 

vide  ante   80,  ■         .  .  i-.^      •  •••..-.  t 

81.  crecleretur,  et  creditoris  quo  magis  ei  m  tuto  sit  credi- 

tum,  sufficit  ad  ejus  rei  custodiam  diligentiam  exactam 

adhibere,  quam  si  prsestiterit,  et  rem  casu  amiserit,  se- 

curus  esse  possit,  nee  impedietur  creditum  petere.     In 

The  pawnee    effect,  if  a  Creditor  takes  a  pawn,,  he  is  bound  to  restore 

reipmitnlic  for  ^^  "po"  t'l^  payment  of  the  debt ;  but  yet  it  is  sufficient, 

any  loss  or      if  the  pawuc  use  true  diligence,  and  he  will  be  indemni- 

<tiniia2;e  with  _  _  _ 

r  spect  to  the  ficd  in  SO  doiiig,  and  notwithstanding  the  loss,  yet  he 
heTs'wari  .nt-  shall  rcsort  to  thc  pawnor  for  his  debt.  Agreeable  to 
e<i  it.  deiain     ^}^■^^  jg  29  Ass.  28.  and  Southcotc's  case  is.     But  indeed 

ing  It,  II  It  was 

occa.sio.,e a  hy  the  rcasoii  give  in  Southcote's  ca.?c  is,  because  the  paw- 

his  negligence  .  . 

Vi.ie  ante  75.  HGc  has  a  spccial  property  in  tne  pawn.  But  that  is  not 
is  n'Z's^  V.  3  *^^^  reason  of  the  case  ;  and  there  is  another  reason  giv- 
Saiit  _:6<!.        gjj  f^j.  j^  jj^  ^ij^  book  oi'  Assize,  which  is  indeed  the  true 

btilk.  o!2. 

vide  ante  75.  reason  of  all  these  cases,  that  the  law  requires  nothing 
Bnt  ho  is  nn-   extraordinary  of  the  pawnee,  but  only  that  he  shall  use 

sivi  rabli-at  all  ,.  ..  •      .  ,  ,  t»         •      i        , 

fivenis  for  any  ^^  Ordinary  care  tor  restoring  tiie  goods.  But,iildced, 
L"e  wifdr  if  t^^l'e  money  for  which  the  goods  were  pawned,  be  ten- 
happens  after  dcrcd  to  the  pawnee  before  they  are  lost,  the  paw- 
he    ought  to  1111  /. 

have  rciuriied  nee  shall  be  answerable  for  them  ;  because  the  pawnee, 
S.^P.  ^"saik.  ^^y  detaining  them  after  the  tender  of  the  money,  is  a 


APPENDIX.  ^V 

wroiiff-doer,  and  it  is  a  wroiwful  detainer  of  the  goods,  ^^f  •  ^°Y  =00 

o  J  ft  B  ^  528.  Sa  k.  522 

and  the  special  property  of  the  pawnee  is  determined.  vi«ie2Ld. 
And  a  man  that  keeps  goods  by  wrong,  must  be  answer-  jt^^\^'  ^g      j^^ 
able  for  them  at  all  events,  for  the  detaining  of  them  by  J"""  *'"'^  , 

'  o  *'    keeps  E^oous 

him  is  the  reason  of  the  loss.     Upon  the  same  difference  by  wron?  is 

I       1  ■       •  1      •  •  n    1        ^  1    .      at  all  events 

as  the  Jaw  is  ni  relation  to  pawns,  it  will  be  lounu  to  answerable 

,         1   •  1    ^-         ^  1      /■  1  for  their  loss 

Stand  in  relation  to  goods  round.  ^^  damag  , 

As  to  the  lifth  sort  of  bailments,  viz.  a  delivery  to  car-  l''}^  ^""^  '^^ 

•^  71. 

ry  or  otherwise  manage,  for  a  reward  to  be  paid  to  the 

bailee,  those  cases  are  of  two  sorts  ;  either  a  delivery  to 

one  that  exercises  a  public  employment,  or  a  delivery  to 

a  private  person.     First,  if  it  be  to  a  person  of  the  first  2  Ld.  Raym. 

sort,  and  he  is  to  have  a  reward,  he  is  bound  to  answer  if  goods  are 

for  the  goods  at  all  events.     And  this  is  the  case  of  the  pel-^nln  a"  * 

-^'ommon  carrier,  common  hoyman,  master  of  a  ship,  &c.  public  em- 
ployment for  a 
Vvhichcase  of  a  master  of  a  ship  was  first  adjudged  26  purpose  in  re- 
Car.  2.  in  the  case  of  Mors  v.  Slew,  Raym.  220. 1  Vent.  helsVo  hn\-ea 
190.  238.      The  law  charges  this  person  thus  intrusted  '^^^'^^  h«  is 

~  t  answerable 

to   carry    goods,    against    all    events    but    acts    of  God ''o' a'W  loss  or 

1      r,     1  •      ^    /»     1       1  damage  which 

and  of  the  enemies  of  the  king.     For  though  the  force  is  not  occa- 

1  ~f  •  •     -i  1  T  •       1         n  sioned  by  the 

be  never  so  great,  as  if  an  irresistible  multitude  of  pco-  a^t  of  God  or 
pic  should  rob  him,  nevertheless  he  is  chargeable.    And  ''^'^'^■"g'^* 

'  ^  enemies    S.  i  - 

this  is  a  politic  establishment,  contrived  by  the  policy  of  Hoitisi  R. 

1        1  /.  ,  j^  ^      ,,  ace.  1  Wils. 

tiie  law,  tor  the  safety  of  all  persons,  the  necessity  of  281.  Barclay 
whose  afiairs  obli^fes  them  to  trust  these  sorts  of  per-  ^  j  "24  g.  3. 
sons,  that  they  may  be  safe  in  their  ways  of  dealing;  for  J,""^"^  '^"^ 

•'  _        ''  ,     -^  »  '  Mersey  Coni-- 

else  these  carriers  might  have  an  opiwrtunity  of  undo-  panv  v.Wood. 

11  1         1      I  ,1-  •  .      ,  ,  B.  RE.  T.  25 

ing  all  persons  that  had  any  dealings  witn  them,  by  com-  a,  8.  1  T  R. 

billing  with  thieves,  Sec.  and  yet  doing  it  in  such  a  clan-  Ravm!'^?!^'' 
destine  manner,  as  would  not  be  possible  to  be  discover-  S"- 128.  Burr, 

2  :00.  2S27. 

ed.  And  this  is  the  reason  the  law  is  founded  upon  in  Ante  103.  a 
that  point.  The  second  sort  are  bailies,  factors,  and  ul^rl'lho^igiTbe 
such  like.     And  though  a  bailee  is  to  have  a  reward  for  '''"*  '"?^  ^ 

^  re«a<d,  is  nojt 

his  manogement,  yet  he  is  only  to  do  the  best  he  can.  answeraMe 


XVi  APPF-NDTX. 

for  any  loss  or  \^(]   if  lie  be   robbetl,  <fec.  it  is  a  ffood  account.     And 

damase  which  _  _ 

was  not  occa-  tlic  rea>oii  of  Ills   beini>'  o  servant  is  ncjt  tijo  lliina'  :  lor 

sioupd  or  fa-     i-.i-^  c  i-  ^  i^  t 

ciiita  ed  by  "^  '"^  ^^  ''  oistancc  troiii  111'!  master,  aiui  acts  at  discre-- 
o'^d"*u'^i*^V^i  tion,  receiving  rents  and  selling-  corn',  6cc.  And  vol  if 
Vide    Vent      he  receivcs  his  master's  monev,  and  keeps  it  locUed  nn 

121    2   Lev.  5        .   , 

ante 97  a.  wiih  a  reasonable  care,  he  shall  not  be  answerable  fo<-  it 
6  Ser  &i  R  w.  tboiigh  it  be  stolen.  Bnt  yet  this  servant  is  not  a  do- 
ayo.  o86.  inestic  servant,  nor  nnder  his  masters  injniediate  care. 
Bnt  the  true  reason  ofihe  case  is,  it  wonld  be  unreasona- 
ble to  charge  him  with  a  trnst,  farther  tJian  the  nature 
of  the  thiijo-  puts  it  in  his  power  to  perforin  it.  Bnt  it  is 
allowed  in  the  other  cases,  by  reason  of  the  necessity  of 
the  thing.     Tlie  same  law  of  a  factor. 

As  to  the  sixth  sort  of  bailment,  it  is  to  betaken,  that 

the  bailee  is  to  have  no  reward  for  his  pains,  bnt  yet  that 

by  his  ill  management  the  goods  are  spoiled.     Secondly, 

it  is  to  be  understood,  that  there  was  a  neglect  in  the 

A  man  to       management.     But  thirdly,  if  it   had  appeared  that  the 

vhom  goods    jYiischief  happened    bv   any  person  that  met  the  cart  in 

are    delivered  '  '  •  •      ' 

for  a  purpose  the  Way,  the   bailee  had    not  been  chargeable.     As  if  a 

in    respect    of  "  i        •        i    ~  i  i      i      • 

which  lie  is  to  clrunken  man  had  come  by  jn  the  streets,  and  had  pier- 
„^,!!i  ":"  !.Z  ced  the  cask  of  brandv  ;  in  this  case  the  defendant  had 
answerable      j^qj  hccH  answerablc  for   it,  because  he  was  to  have  no- 

for  any  loss  or 

damajre  occa-  thing  for  his  pains.  Then  the  bailee  having  undertaken  to 
third  person,  manage  the  goods,  and  having  manned  them  ill,  and  so 
by  his  neglect  a  damage  has  happened  to  the  bailor, 
which  is  the  case  in  question,  what  will  you  call  this  ? 
In  Bracton,  lib.  3.  100.  it  is  called  mandatum.  It  is  an 
obligation  which  arises  ex  mandato.   •  It  is  what  we  call 

Case  lies  for      .       -^         . 

negligently      in  English  an  acting  by  commission.     And  if  a  man  acts 

*rati"coMimis.  ^^Y   coiumission  for  another  gratis,  and    in  the  executing 

*'°,^  r.^  '''*^      his   commission  behaves   himself  negligently,   be   is  an- 
1  H.  BI.  l.>8.  ....  . 

anteoz.  n.  2.    swcrablc.      Fr*n?i/j/s,  in  his  Commentaries  upou  Justinian, 

"  919 '^'"^'  ^^'^*  ^'  ^'^*  '^^*  ^^"^*  tletines  mandatum  to  be  contractus  quo 


APPENDIX.  Xvii 

aliqnid  gratnito  gerendum  coininitl  itur  et  nccipitur.  This 
uiideitaking  ohliges  the  undertaker  to  a  diligent  niuii- 
agement.  Bracton,  ubi  suhra,  says,  contrahitur  etiain 
ohiigatio  non  sohiin  scri|)to  ct  \  erbis,  sed  et  consensu,  sicut 
in  {oiilrattibus  bonrP  tide  ;  ut  in  einptionibus,  venditi- 
oiiibus,  locatiouibiis,  coiiiliutionibiis,  societatibus,  et  nmii- 
daris.  I  don't  tind  this  \voi<l  in  any  other  author  of  our 
law  besides  in  this  place  in  Bracion,  which  is  a  full 
authority,  if  it  be  not  thonglit  too  old.  But  it  is  sup- 
ported by  good  reason  and  authority. 

The  reasons  are,  first,  because  in  such  a  case,  a  neg- 
lect is  a  deceit  to  the  bailor.  For  when  he  intrusts  the 
bailee  upon  his  undertaking  lo  be  careful,  he  has  put  a 
fraud  u|)on  the  plaintifl'  by  being  negligent,  his  pretence 
of  care  being  the  persuasion  that  iniluced  the  plaintiff  to 
trust  liiu).     And  a  breach  of  a  trust  undertaken  volunta-  ^ ''•"''''ch  of  a 

trust  underta- 

rily  will  be  a  good  ground  for  an  action.      1    Boll.   Abr.  ken  volunta^i- 
^  „    ^   , ,         ,.11  I  ■  ,„,  Iv  is  a  eood 
10.  2  Hen.  t.  J  I.  a  strong  case  to  this  matter.    There  the  ground  for  an 

case  was  an  action  against  a  man,  who  had  undertaken  I'^.HTrA  rY"** 
to  keep  an  lunidred  sheep,  for  letting  them  be  drovvned 
by  his  dei'ault.  And  there  the  reason  of  the  judiiment 
is  given,  because  when  the  party  has  taken  upon  him  to 
keep'the  sheep,  and  after  suflfcrs  them  to  perish  in  his 
default :  inasmuch  as  he  has  taken  and  executed  his  bar- 
gain, and  has  them  in  his  custody  ;  if  after  he  does  not 
look  to  them,  an  action  lies.  For  h<Me  is  his  own  act, 
viz.  his  agreement  and  promise,  and  that  after  broke  of 
his  side,  that  shall  give  a  suflicient  cause  of  action. 

But,  secondly,  it  is  objected,  that  there  is  no  conside- 
ration to  ground  this  promise  upon,  and  therefore  the 
undertaking  is  but  luuliun  jjuctum.  But  to  this  1  answ^er, 
that  the  owner's  trusting  him  with  the  goods  is  a  suffi- 
cient consideration  to  oblige  him  to  a  careful  manage- 
ment.    Indeed,  if  the  agreement   had  been  executory^ 


XVlll  APPENDIX. 

(a)  Vide  ante,  ^q  eaiiy  tlicse  branches  from  one  place  to  tlie  other  such 

a  day,  the(«)   defendant  had   not   been  bound   to  carry 

them.     But  this  is  a  different  case,  for  assumjjsit  doesnqt 

only  signify  a  future  agreement,   but  in  such  a  case   as 

this,   it   signifies  an  actual  entrance  upon  the  thing,  and 

taking  the  trust  upon   himself.     And  if  a   man  will   do 

that,   and   miscarries   in  the  performance  of  his   trust, 

an  action  will  lie   against  him  for  that,   though  nobody 

could   have    compelled   him  to  do   the   thing.     The  19 

Vide  ante  54.    j/g^.   6.  49.  and  the  Other  cascs  cited  by  my  brothers, 

shew  that  this  is  the  difference.     But  in  the  11  Hen.  4. 

33.  this  difference  is  clearly  put,  and  that  is  the  only  case 

concerning  this  matter,  which  has  not  been  cited  by  my 

brothers.     There  the  action   was  brought  againt  a  car- 

^Ld   Raim  P^^^er,  for  that  he   had  undertaken  to  build  the  plaintiff 

920.         a  house  within  such  a  time,  and  had  not  done  it,  and  it 

was   adjudged  the  action  would  not  lie.     l^ut  there  the 

inises  to  rede,  question   was  put   to  the  court,  what  if  he  had  built  the 

con<id^e°adon"  Iwuse  unskilfully,  and  it  is  agreed  in  that  case  an  action 

of  havin^them  ^yo^jij  have  lain.  .  There  has  been  a  question  made,  if  I 

ilciivo'"»;d  to 

111  11,  an  action  dolivcr  goods  to  A.  and  in  consideration  thereof  he  pro- 
himfoAtot"e!.misc  to  re-deliver  them,  if  an  action  will  lie  for  not  re- 
de!iverin!T        dcliverin"'  them  ;    and  in  Yclv.  4.  iudgmeut  was  given 

them.      Vde  °  ,  •     ^  > 

ante,  50. 52.  that  the  action  would  lie.  But  that  judgment  was  after- 
wards reversed,  and  according  to  that  reversal,  there  was 
judgment  afterward^  entered  for  the  defendant  in  the  like 
case.  Yelv.  128.  But  those  cases  were  griimbled  ot, 
and  the  reversal  of  that  judgment  in  Ytlv.  4.  was  said  by 
the  judges  to  be  a  bad  resolution,  and  the  contrary  to 
that  reversal  was  afterwards  most  solemnly  adjifriged  in 
2  Cro.  667.  Tr.  21  Jac.  1.  in  the  Kmg's  Bench,  and  that 
judgment  affirmed  ui)on  a  writ  of  error.  And  yet  there 
is  no  benefit  to  the  defendant,  nor  no  consideration  in 
that  case,  but  the  having  the  money  in  his  po^^session, 
and  being  trusted  with  it,  and  yet  that  was  held  to  be  a 


APPENDIX.  \\x 

good  consideration.  And  so  a  bare  being  trusted  with 
another  man's  goods  must  be  taken  to  be  a  sufficient 
consideration,  if  the  bailee  once  enter  upon  the  trust, 
and  take  the  goods  into  his  possession.  The  declaration 
in  the  case  of  Mors  v.  Sleiv  was  drawn  by  the  greatest 
drawer  in  England  at  that  time,  and  in  that  declaration, 
as  it  was  always  in  all  such  cases,  it  was  thought  most 
prudent  to  put  in,  that  a  reward  was  to  be  paid  for  the 
carriage.  And  so  it  has  been  usual  to  put  it  in  the  writ, 
Avhere  the  suit  is  by  original.  I  have  said  thus  much  in 
this  case,  because  it  is  of  great  consequence  that  the  law 
should  be  settled  in  this  point  ;  but  I  don't  know  whe- 
ther I  may  have  settled  it,  or  may  not  rather  have  un- 
settled it.  But  however  that  happen,  I  have  stirred 
these  points,  which  wiser  heads  in  time  may  settle.  And 
judgment  was  given  for  the  plaintiff.  * 


THE   END. 


IXI>EX 

TO 

THE  PRINCIPAL  MATTERS. 


Ahatemmt,  carrier  may  plead  in,  when,  107  b. 

Jlct  of  God  and  of  the  King's  enemies,  wliat  considered  such,  104  b. 

Actio  I  ag^aiost  innkeepers,  by  whom  maintainable,  95  a. 

Agamsl  carriers,  107  h. 
Artificers,     i^ee  Workmen. 

Responsibility  of,  in  civil  law,  23,  note  7. 
Assumpiit,  when  maintainable  against  earner,  l07  b. 

B. 

Bailee,  responsibility  of,  how  measured,  9,21,  note  2. 

Gratuitous,  wiien  responsible,  53,  note  2. 

M;iy  sue  in  bis  own  name,  when,  79.  note  3. 

Entitled  to  right  of  lien,  in  what  cases,  90,  note  2. 
Bailiff',  responsibility  of,  97  a.  note  9. 
Bat/men<,  definition  of.  1. 

Lord  Holt's  division  of,  defective,  35. 

Divisible  mto  five  branches,  ib. 
Bailor  may  sue  for  injury  to  bailment,  when.  91  a,  note  2, 

Joint  demand  of,  when  necessary,  51,  52,  note  9. 
Bnra-{tinan.\'\dib\Vny  of,  as  common  carrier,  103  c. 
Bill  of  Lading,  eniiursement  of,  tflpLiCt  of,  106  w. 
Borrower,  responsibility  of,  in  civil  law,  23,  note  1. 

b}  law  of  England,  65. 

Mav  use  article  borrowed,  when,  68. 
Buyer,  right?  of,  after  sale,  what  in  civil  law,  23,  note  6. 


Carriers,  responsibility  of,  by  civil  law,  23,  note  7. 

— bv  (ode  Napoleon,  ib. 

by  law  of  Kngland,  103  e,  104. 

. how  created,  ib. 

Who  are  considered  sui;h,  103,  note  3. 
Obligations  of,  what,  103  e. 
Bou'id  to  receive  goods,  when,  ib. 
What  will  be  sufficient  excuse,  ib. 


INDEX.  f 

Carriers  responsible  for  safe  carriage,  against  what  events,   04  d. 

JIow  exonerated  from  responsibility.  104  d. 

Obligation  (o  deliver  goods,  what,  105  i. 

Rights  of,  what,  105  h. 

Right  of  lien,  inwhat  cases  allowed,  105  i. 

■ general,  how  created.  lOG. 

Remedies  against,  what,  107  b. 
Carriers  by  Water,  responsibility  of,  107  h,  note  2. 

How  limited  by  statute,  i6. 
Case,  action  upon  the,  nature  of,  against  carrier,  107  c. 

Against  carrier,  wlien  maintamable,  ib. 

IVlay  be  joined  with  trover,  107  f. 
Civil  Laiv,  method  of  quoting.  22,  note  3- 
Coffee  House  considered  as  an  inn,  when,  94  a. 
Comtnodatum.     See  Loan  for  use. 

In  civil  law,  what,  23,  note  1. 
Consideralion  in  Contract,  when  must  be  alleged,  54,  note  4. 
Consignor,  when  liable  for  carriage,  106  a. 
Consignee,  effect  of  delivery  between  consignor  and,  lOG  a. 

When  bound  hy  consignor's  delivery,  ib. 
Contract,  what  necessary  in  making,  70,  note  4. 

Between  carrier  and  employer,  nature  of,   103  g. 

Innominate,  what,  92. 
Conversion,  definition  of,    107  f. 

What  acts  will  constitute,  ib. 

Demand  and  refusal,  when  necessary,  107  g. 

By  carrier,  when  committed,  ib. 

When  inferred  from  demand  aud  refusal,  ib. 


D. 

Declaration.,  what  required  in,  againsl  innkeeper,  95  a. 

against  carrier,  107  i. 

Delivery  to  carrier,  nature  of,    103  f 

when  complete,  ib. 

must  be  free  from  fraud,  103  h. 

To  consignee,  when  necessaiy,  105  i 

How  regulated  in  foreign  commerce,  105  k. 

Carrier  entitled  to  payment  on,  ib. 

Effect  of,  between  consignor  and  consignee,  106 J). 

When  sufficient,  under  Statute  of  Frands,   106  d. 
Deposit,  what,  in  civil  law,  22. 

Different  kinds  of,    in  Code  Napoleon.  48,  note  8. 

Grecian  and  Arabian  laws,  respecting,  al. 

To  keep,  and  to  keep  safely,  distinction  between,  42  n. 

Mosaic  law,  respecting,  40. 
Depositary,  responsibility  of,    by  the  civil  law,  22,  note  4. 

by  the  f 'ode  Napoleon,  ib. 

by  law  of  England,  45. 

Rules  and  exceptions  to,  ib. 

For  reward,  what  evidence  requisite  in  an  action  against,  9: 


INDEX. 

Diligence.    See  JVeglecl. 

Degrees  of,  lu  civil  law,  21,  note  2. 
OQ  what  principles  established,  ib. 

E 

Emplio  Vendito.     See  Sa/e. 

Evidence,  in  action  against  innkeeper,  what  requisite,  95  b 

againt  hirer  of  liorse,  87.   note  6. 

against  depositary  of  gou(is  for  liire,  97,  note  7. 

Of  general  lien,  when  necessary,  106. 

In  action  against  carrier,  what  required,  107  m. 

On  part  of  plaintiff,   107  ra, 

defendant,  ib. 

F. 

Factor,  responsibility  of,   97  a. 

Farrier,  bound  to  perform  offices  of  trade,  when,  61,  note  8. 

Fesance,  distinction  between  non-fesance  and  mis-fesance,  54,  note  4. 

Ferryman  liable  as  common  carrier,   103  c. 

jPrawrf  cannot  be  stipulated  against,   11. 

C'onsists  in  what,  71. 

Gross  negligence    equivalent  to,  21. 
Freight,  right  to,  not  affected  by  bad  stowage,  106  a. 
Lien  for,  when  waived,  105  n. 

G. 

Gazette,  notice  in,  same  effect  as  in  other  papers,  104  i. 
Guest.     See  Innkeeper. 

Who  considered  such,  94  b.  note. 

Temporary  absence    when  consistent  with  character  of,  i&. 

Traveller,  when  considered  such,  94  a. 

H. 

Hackney  Coachmen.     See  Stage  Coaches. 

Liable  as  common  tiarriers,  when,  103  a. 
Hirer,  property  in  goods,  when  acquired  by,  80,  note. 

Of  goods,  responsibility  of,  by  law  of  England,  86.  88  n. 

Of  works,  90. 

And  borrower,  distinction  between,  88. 
Hiring.     See  Locatio-Conductio. 

Of  work,  division  of,  90. 
Hoymen  liable  as  common  carriers,  103  c, 

I. 

Inn,  definition  of,  94  a. 

What  considered  such,  ib. 

Coffee-house,  when  deemed  such,  ib. 
Innkeepers,  responsibility  of,  by  civil  law,  23,  note  7. 

'■ ■ by  Roman  law,  96. 


INDEX. 

Innkeepers,  responsibility  of,   bj  law  of  England  94  c.  95  a. 

Duties  of,   what,  ib. 

Bound  to  entertain  persons,  when,  94  c. 

What  will  be  sufTicieiit  excuse,  94  c. 

Liability  for  goods,  what  required,  ib. 

"VV  hen  exonerated  hy  acts  of  guests,  95  n. 

IVot  liable  for  washing  guest's  linen,  95  a. 

Right  of  lien,  entitled  to.  ib. 

Cannot  sell  goods  detained,  ib. 

-except  by  custom  of  London  and  Exeter,  ib. 

Remedies  against,  what,  9.  ib.. 

Action  against,  by  whom  maintained,  95  b. 

M  ister  may  sue,  in  what  cas:  s,  95  a. 

When  guilty  of  conversion,  95  b. 

Whai  evidence  required  in  an  action  against,  ib. 
Insurer,  how  fur  carriers  considered  as  such,  104  b. 


Law.     See  Civil  Law. 

Liabitil)/,  of  innkeepers,  on  what  established,  94. 

In  case  of  carrier,  104  a. 
Lien,  definition  of  right  of,  105  1. 

Divisible  into  particular  and  general,  ib. 

Merely  a  security  to  enforce  payment,  ib. 
Does  not  include  power  of  sale,  ib. 

Extinguished  by  special  agreement,  when,  105  to. 

Continues  only  during  possession,  ib. 

Particular,  what,  l05  n. 

General,  what,  and  how  created,  105  o. 
J^oan  for  use,  distinguishable  from  loan  for  consumption,  63. 

Responsibility,  in  civil  law,  of  bailee,  in  case  of,  23,  note  1. 

by  law  of  England.  65 

Distinction  between  theft  and  robbery,  66. 

In  case  of  valued  loan,  71. 

Bnles  and  exceptions,  ib. 

M  'saic  and  Attic  laws,  relating  to,  73. 
Localio-conduclio.     See  Hiring,  Hirer. 

In  civil  law,  what,  23,  note  7. 
Locatio- 0 peris  faciendi.     See   Hirer,  Innkeeper,  Jfarehousemnn. 

divisible  into  two  branches,  GO. 
Locatlo-mercium  vehendarum.     See  Carrier. 
Locatio  rei.     See  Hirer. 
Locatum.     See  Hiring. 

For  a  reward,  what,  36. 

M. 

Mandate,  in  the  civil  law,  what,  22,  note  5. 

In  the  law  of  England,   .02 
Mindatf,  distinction  hetwe*>n  deposit  and,  53. 

Must  be  gratuitous,  ib. 


INDEX. 

Mandatary,  responsibility  of,  in  the  civil  law,  22,  note  5. 

by  law  of  England,  53 

may  be  varied  how,  54.  note  7. 

Exceptions  to  responsibility,  what,  63. 
Master,  responsible  for  servant's  conduct,  when,  89,  note  9. 
Maxims,  ex  dolo  malo  non  oritur  actio,   104. 

Modus  et  couventio,  vincunt  legem,  48,  note  7. 
Money,  payment  of,   into  Court,  effect  of,    107  k. 

When  allowed  in  action  against  carrier,  ib. 

N. 

JVegled,  responsibility  for.  how  measured,  9.  21. 

different  systems  of,   examined,  25. 
degrees  of,  what,  7. 
how  defined,  21. 

Divisible  into  gross,  ordinary,  and  slight,  C. 

Gross,  stipulations  against,  void,  54. 
JVegligence.     See  J^cg'ect. 

Degrees  of.  what,  4. 

In  action  against  carrier,  what  evidence  of,  107  m. 
J^on-Fesance.     See  Fesnnce. 
J^otice,  general,  by  carriers. 

ISature  and  introduction  of,  104  f. 

Legality  of,   when  established,  104  g. 

Must  proceed  from  carrier,  104  h. 

Communication  of,    what  suflScient,    104  i. 

By  advertisememts,  104  i. 

Bv  hand  bills.  104  j. 

By  posting  in  office,  104  i. 

Inferred  from  particular  cases,  when,  104  j 

Waived,  by  what  acts,  104  k. 

Not.  by  knowledge  of  value.  104  k. 

Form  and  construction  of,  what,  105. 

No  protection  for  gross   negligence,  105  a. 

Nor  for  mis-feasance,  105  e,  105  g. 

o. 

Obligntion,  of  innkeepers,  whence  it  arises,  94. 

of  carriers,  104  a. 
Owners  of  ships,  responsibility  of  as  carriers,  103  b. 

Part,  how  liable,  107  s. 

P. 

Packer,  delivery  to,  when  such,  to  vendee,   106  s, 
Pandects,  account  of  the  discovery  of,    18,  note  8. 
Partners  in  civil  law.  resp  )nsibility  of,  what,  23,  note  9. 
Partnership,  in  civil  law,  what,  23.  note  9. 
Puwnbroker  may  detain  a  tide,  when,  75,  note  8. 
Pawnee  may  detain  gouts,  when,  75,  note  8. 


INDEX. 

Pawnee,  responsibility  of,  in  civil  law,  23,  note  8-  5. 

by  law  of  England,  75;  note  1. 

For  theft  androbberj,  what,  81. 

In  action  against,  what  evidence  required,  76,  note  !• 
Payment.     See  Jloney. 

AVhen  required  in  sales,  by  civil  law,  23,  note  6. 

by  Code  Napoleon,  ib. 

by  law  of  England,  85,  note  5. 

Pignori  accepbim.     See  Pledge. 

Pledge,  in  civil  law.  creates  a  contract,  what,  23. 

Antiquity  of  ih. 

Law  of  England,  relating  to,  74. 

Lord  Coke's  doctrine,  controverted,  75. 

Law  of  Turkey,  relating  to,  83. 
Porter,  liability  of,   103  c. 

Action  against,  when  maintainable,  107  i. 
Post-chaise,  owner  of,    responsibility  of,  88,  note  8. 
Possession  of  goods,  when  sufficient  to  charge  innkeeper,  94  c. 

■ carrier,  103  f. 

master  of  vessel,  ib. 

warehouseman,  97. 


Post  Master  General,  responsibility  of,   109. 

Not  liable  as  carrier,  103  d. 

For  neglect  of  inferior  officers,  109.  note  3. 
Pyivate  Persons,  how  liable  for  carriage  of  goods,  103  d. 
Property,  when  transferred  by  sale  in  civil  law,  23,  note  6. 
by  law  of  England,  86  note. 

to  consignee  by  delivery  to  carrier,  106  b. 

Q. 

Quarantine,  stoppage  in  transitu  not  destroyed  by  performance  of,  106  n. 

R. 

Refusal  to  receive  guest,  when  justifiable,  94  c. 

To  carry  goods,  103  e- 
Jiepresentalion,  as  to  value  of  goods,  effect  of,   103  g. 
Reward,  measure  of  liability,  what,  9. 


Sale,  eflFect  of,  by  civil  law,  23,  note  6. 

by  Code  Napoleon,  ib. 

Property  transferred  by,  when,  85,  note  5. 

By  law  of  England,  how  governed.  85. 
Seller,  responsibility  required  after  sale,  what,  23,  note  6. 

Right  of,  after  sale,  ib. 

Bound  to  disclose  defects,  when,  69,  note  4. 
Servants.     See  Master. 

Of  coach  owners,  when  considered  carriers,  103  c. 

Innkeepers,  responsibility  for  acts  of,  95. 


INDEX, 

Servants,  carriers,  103  c. 

Ship.     See   F'essel. 

Commanders  of  King's,  responsibility  of,  for  carriage,  103  d. 
Stage-Coaches,  owners  of,  when  considered  carriers,  103. 

Entry  at  Somerset-house  office,  when  evidence  against,  10?  m. 
Stris^f-wagscons,  owners  of,   deemed  carriers,   103,  note  3. 
Stoppage  in  Transitu,  origin  and  nature  of  the  right  of,  1U6  d> 

Court  of  Chancery,  no  jurisdiction  in.   106  d. 

Limited  to  the  case  of  insolvency,  106  e. 

B\    whom  exercised,  ib. 

By  vendor,    106  f. 

fiot  by  mere  surety,  106  g. 

Transitus  in,  not  destroyed  by  part  payment,  ib. 

Continuing,  in  what  cases,  106  h. 

"When  determined,  106  o. 

by  part  delivery,  ib. 

actual  transfer  not  necessarj.  106  p. 

by  deliver}  to  warehouseman,  106. 

delivery  to  packer,  when  sufficient,  106  s> 

In  what  cases  taken  away,  106  v. 

Indorsement  of  bill  of  lading  not  necessary,   107. 
Special  undertaking  to  carry  goods,  when  necessary,  103  g. 
Stowage,  bad,  no  answer  to  action  for  freight,   106  a. 

T.  ' 

Tenant,  implied  contract  with  landlord,  what,  90,  note  1 , 

Bound  to  repair  fences,  when,   90. 

Cultivation  of  land,  what  required,  ib. 
Transit.     See  Stoppage  in  Transitu. 

when  ended,  and  when  not,  106  h,  106  o. 
Transfer  of  property  by  sale,  how  made  in  civil  law,  23,  note  6. 

by  law  of  England,  83,  note  5. 

Trover,  when  maintainable  against  carrier,  l07  f. 

May  be  joined  with  case,  ib. 

V. 

Value,  knowledge  of,   no  waiver  of  notice,  104,  k. 

responsibility,  liow   affected  by,  30. 

Concealment  of,  effect  of,  103  g, 
Vessel.     See  Skip. 

Owners  and  masters  of,  common  carriers,  103  b. 

w. 

Warehousemen,  responsibility  of,  what  96  a. 

different  from  carriers,  96,  note  7 

Liable  for  gross  negligeace,  96,  note  7. 

accidental  fire,  not,  ih. 

In  action  against,  what  evidence  required,  97. 
Wharfage  dues,  iien  for,  how  waived,  105  m. 


INDEX. 

Wharfinger,  when  considered  common  carrier,  103  c. 

When  exonerated  from  liability,  103  f. 

Delivery  to,  etfect  of,  in  stoppage  in  transitu,  106  s. 

Entitled  to  right  of  lien,  105  o. 
Workmen.     See  Artificers. 

JVlust  exercise  ordinary   care,  91. 
Writing,  when  required  by  law  of  England,   48,  note  8. 

by  laws  of  foreign  countries,  ib. 

Witnesses,  who  adnaissiljle  as,  in  action  against  carriers,  107  n. 


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